guardian of the person is the most appropriate person to make the waiver; for to this guardian are confided the rights which pertain to the person of the infant, and through him, as an agent, the state exercises functions as to the person of the infant such as the infant, if sui juris, would exercise. That is to say, this guardian, as to purely personal matters can, within the scope of his functions, do as his ward, acting rationally, would, if sui juris. Woerner, Guardianship, 1, 2. The right of waiver given by the statute has been held to be one which pertains to the person and character of the patient, and not such as belongs to a representative of property rights. In Westover v. Etna Insurance Co., 99 N. Y. 56, 1 N. E. 104, it was said:

"An executor or administrator does not represent the deceased for the purpose of making such a waiver. He represents him simply in reference to rights of property, and not in reference to those rights which pertain to the person and character of the testator."

This case presents a reason for holding that the guardian of

Waiver of PRIVILEGE OF COMMUNICATIONS TO ATTORNEY OR PHYSICIAN,— continued.

Pro. 364; 41 St. Rep. 614; 16 Supp. 536, pushes the principle too far and that Marx v. Manhattan R. Co. may be open to some doubt.

The cross-examination of a plaintiff, suing for personal injuries, as to prior physicial condition and physicians consulted, ailments etc., cannot effect a waiver of privilege so as to permit the defendant to introduce the testimony of such physicians.

Butler v. Manhattan R. Co., 3 Misc. 453; 52 St. Rep. 498; 23 Supp. 163; 30 Abb. N. C. 78; Aff'd 143 N. Y. 630; 37 N. E. 826.

2. Calling physician or attorney as witness.

Calling his attorney to testify as to a communication is a sufficient waiver of the privilege.

Smith v. Crego, 54 Hun, 22; 26 St. Rep. 64; 7 Supp. 86.

The mere calling of a physician as a witness by the personal representative of the patient does not amount to a waiver of the privilege. In the absence of an express waiver, an objection to the disclosure of professional communications by the physician is well taken by the adverse party.

Holcomb v. Harris, 42 App. Div. 363; 93 St. Rep. 160; 59 Supp. 160. But see Alberti v. N. Y. L. E. & W. R. Co. 118 N. Y. 77, 86; 23 N. E. 35.

the person should be preferred to the guardian of the property for the purposes of the waiver, but is not an authority, as is claimed, for the proposition that the waiver cannot be made by a proper representative. In Alberti v. N. Y., L. E. & W. Railroad Co., 118 N. Y. 77; 23 N. E. 35, an attorney was held to be a proper representative for the purpose. The guardian should, however, never be permitted to make a waiver prejudicial to the interests of his ward; but it does not seem that it is necessary that it should affirmatively appear, upon a waiver by such a guardian, that the waiver is a benefit to the infant. The guar dian may be permitted to exercise his own judgment with spect to the question of prejudice to the child, and, unless called upon to do so, no showing need be made by him primarily in order to be able to make the waiver. It is quite true that ordinarily a guardian cannot bind the ward to his prejudice, but, to require interference with a guardian's actions, it must at least

WAIVER OF PRIVILEGE OF COMMUNICATIONS TO ATTORNEY OR PHYSICIAN,-continued.

A client who examines his counsel as a witness cannot object that the transaction testified to is privileged.

Masterton v. Boyce, 24 St. Rep. 198; 6 Supp. 65; 2 Silv. S. Ct. 205. It is too late to claim the privilege after the professional communications have been the subject of examination and cross-examination, without objection to their disclosure by the physician. Such delay amounts to a waiver. Hoyt v. Hoyt, 112 N. Y. 493; 20 N. E. 402.

The examination by the patient of one of three successive physicians who treated her does not waive the privilege as to the other two physicians. Hope v. Troy & L. R. Co. 40 Hun, 438; Aff'd 110 N. Y. 643; 17 N. E. 873. A patient does not waive the privilege of the statute as to a particular physician by calling in his own behalf other physicians as to his physical condition anterior to and subsequent to the time as to which the privilege is claimed.

Barker v. Cunard, S. S. Co., Limited, 91 Hun, 495; 70 St. Rep. 858; 36 Supp. 256, 25 Civ. Pro. 108; Aff'd 157 N. Y. 693; 51 N. E. 1089.

Where two physicians visit a patient professionally at the same time in consultation and the patient calls one of them and examines him in her own behalf as to professional communications on that occasion, the privilege of objecting to the testimony of the other physican as to the transactions on such occasion is waived.

Morris v. N. Y. O. & W. R. Co. 148 N. Y. 88; 42 N. E. 410. In the case

appear that there is reason to believe that the ward will be prejudiced. The guardian is not obliged to show that the infant will not be prejudiced, until properly called upon. In the pres ent case it does not appear that the ward was in any way prejudiced by the waiver, or that the guardian could not, prior to the waiver, have shown that the ward would not be prejudiced, had it been required of him. But, from all the circumstances, it seems fair to presume that there was no prejudice. Of course, the ward would not be so bound by a guardian's waiver that he could not at any later time assert his privilege, if it appeared that the waiver had been to his prejudice; and so, as to him, the rule that the privilege, if once waived, is waived forever, does not apply, under all circumstances.

It is claimed that, as the infant was not a party to the action

WAIVER OF PRIVILEGE OF COMMUNICATIONS TO ATTORNEY OR PHYSICIAN,continued.

last cited it was said "the plaintiff could not sever her privilege and waive i in part and retain it in part. If she waved it at all it then ceased to exist, not partially, but entirely. The whole question turns upon the legal consequences of the plaintiff's act in calling one of the physicians as a witness. She then completely uncovered and made public what before was private and confidential. It amounted to a consent on her part that all who were present at the interview might speak freely as to what took place. The seal of confidence was removed entirely, not merely broken into two parts and one part removed and the other retained."

Record v. Saratoga Springs, 46 Hun, 448; 12 St. Rep. 395; 27 Week. Dig. 500; Aff'd, 120 N. Y. 646; 24 N. E. 1102, was overruled by the case last cited.

If the client produces his attorney and examines him in chief as to transactions between them, he cannot shield the attorney from cross-examination in relation thereto by a claim of privilege.

Stetson v. Brennan, 21 App. Div. 552; 82 St. Rep. 601; 48 Supp. 601.

If a client by a subpoena duces tecum compels his former attorney to produce documents delivered to the attorney in the course of his professional employment, he thereby waives the privilege protecting such documents from disclosure and his adversary is entitled to put them in evidence. Matter of Hoyt, 7 Civ. Pro. 374.

3. In applications for insurance.

As already stated the amendment of 1899 radically changed the rule as VII. N. Y. A. C.

23

in which the waiver is made, the waiver was of no effect. This point is without merit. We have been unable to discover any sufficient reason for confining an infant's right to waive to any particular action, or for holding that the infant's interest must be so involved that the waiver will be to his pecuniary advantage. It may be an infant's interest, beyond any requirement for the privacy allowed by the statute, to waive, that the ends of justice be furthered. An infant is a citizen, and presumably interested in all that concerns the welfare of the state, and, among other things, ordinarily, in a disclosure of the truth, when the administration of justice requires it.

A point is made, that the father could not waive the privilege, because he was a party to the action, and interested in having the evidence of the physician. It may be a fitting answer that it does not appear that the father knew what the testimony of the physician would be, prior to the making of the waiver, and

WAIVER OF PRIVILEGE OF COMMUNICATIONS TO ATTORNEY OR PHYSICIAN,continued.

to waivers in applications for insurance and the decisions are chiefly of value in cases where the policies were issued prior to the amendment.

A waiver by the insured as to his own physician could not operate to remove the privilege as to relatives referred to in the application for insurance in which the waiver as to himself was contained.

Davis v. Supreme Lodge Knights of Honor, 35 App. Div. 354; 88 St. Rep. 1023; 54 Supp. 1023.

A waiver made in an application for insurance prior to the amendment of 1891 to § 836 of the Code of Civil Procedure (which amendment required the waiver to be made on the trial) is effective and will permit disclosures by a physician, notwithstanding such intervening amendment.

Foley v. Royal Arcanum, 151 N. Y. 196; 45 N. E. 456. This was on the ground that such waiver was a part of the contract which the subsequent amendment could not change.

The waiver by the insured contained in his application for insurance is sufficient to remove the seal of secrecy from the information acquired by a physician.

Holden v. Metropolitan Life Ins. Co. 11 App. Div. 426; 76 St. Rep. 310; 42 Supp. 310.

This decision was made with reference to § 836 of the Code of Civil Procedure as changed by the amendment of 1891 which required the waiver to be made "upon the trial or examination." This case followed Dougherty v.

that, at most, a presumption is permissible that he knew that a disclosure would not be prejudicial to the ward, but that this is not enough to show that he knew that the testimony would be of advantage to him, or that it was of interest to him individually to make the waiver, beyond an interest that the truth be known. We believe that the mere fact that the father was plaintiff did not, under the circumstances, affect his power to make the waiver; but, even if it did, the mother, being present, should, from the circumstances, be presumed to have acquiesced in the waiver, and this would suffice to validate it, for she was joint guardian, with powers and rights equal to those of the father. Domestic Relations Law (Laws 1896, c. 272) § 51. This law places the father and mother upon strict legal equality. People

WAIVER OF PRIVILEGE OF COMMUNICATIONS TO ATTORNEY OR PHYSICIAN,contiuned.

Metropolitan Life Ins. Co. 87 Hun, 15; 67 St. Rep. 489; 33 Supp. 873, in which Dykman, J., said, "The statute imposed silence upon the physician for the protection of the patient. The legislature locked up the secret and gave the key to the patient. He can forego the privilege and unlock the mouth of the doctor. The statute requires that to be done expressly upon the trial, but there is no method prescribed for the accomplishment of the object. If the patient be alive, an entry upon the record at the trial by his counsel would be sufficient. In case of his inability to attend the trial, a written stipulation, signed by him, and entered upon the record, would remove the prohibition. That being so it must be immaterial when the stipulation is signed. In this case it was signed long before the trial in anticipation of that event and with the design of having it used thereat. It cannot be assumed that the insertion of the stipulation in the application was an idle ceremony. It was important to the company and entirely within the competence of the insured. The reasonable construction of the statute, therefore, is that the provisions are expressly waived upon the trial if a proper stipulation to that effect be produced thereat and entered upon the record, regardless of the time when the waiver was executed."

Where a contract of insurance makes the proofs of death evidence of the facts therein stated, the beneficiary, by presenting the proofs of death, waives any privilege which may pertain to disclosures made by the physician who makes out such proofs and cannot thereafter object to anything in such proofs as privileged.

Proppe v. Metropolitan Life Ins. Co. 13 Misc. 266; 68 St. Rep. 223; 34 Supp. 172.