#### Frank M. Howe, Respondent, *v.*Mary Regensburg, Mortimer Regensburg and Isaac Regensburg, as Executors of the Last Will and Testament of Edward Regensburg, Deceased, Appellants.

(Supreme Court, Appellate Term,

January, 1912.)

Witnesses—Applicability of section 829 of Code of • Civil Procedure — Section 834 not applicable to dentist.

In an action by a dentist to recover for services rendered by him to the defendants’ testator, the provisions of section 829 of the Code of Civil Procedure are not applicable to the secretary of the plaintiff" who was present when the contract was made and who saw the plaintiff, perform the work he had agreed to do, nor to the plaintiff himself so far as he ’testifies solely to the work which he did for the testator while the testator himself was not present.

Nor are the provisions of section 834 of the Code of Civil Procedure disqualifying physicians and surgeons from testifying to information acquired in a professional capacity applicable to a dentist.

Appeal by defendants from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, ninth district, rendered in fayor of the plaintiff.

Paskus, Oohen & Gordon (Arthur B. Hyman, of counsel), for appellants.

Walter P. Frank, for respondent.

Seabury, J.

The plaintiff, a duly licensed dentist, sues to recover the agreed price of professional services rendered to the defendants’ testator. The evidence is ample to sustain *133the judgment rendered in favor of the plaintiff, and the only questions which we are called upon' to determine upon this appeal are questions of law. The testimony on behalf of the plaintiff which is claimed to he open to objections under section 829 of the Code of Civil Procedure was properly ■ received. The plaintiff’s cause of action was sustained by the testimony of the plaintiff’s secretary who was present when the contract was made and who saw the plaintiff perform the work which he agreed to do. This witness was in no way interested in the event of the action pending between these parties. Eisenlord v. Clum, 126 N. Y. 552. The testimony of the plaintiff himself, so far as it was given in response to questions propounded by his counsel, related solely to the work which he did for the testator while the testator himsélf was not present. These services which the plaintiff performed on the plates which the plaintiff made for the defendants’ testator were not performed in the presence of his patient. The deceased did not participate in the rendition of the plaintiff’s services in making the plates, and such services did not involve a personal transaction with the' deceased. The testimony, therefore, which the plaintiff gave on this subject was not within the prohibition of section 829 of the Code of Civil Procedure. Holcomb v. Holcomb, 95 N. Y. 316; Burrows v. Butler, 3 Hun, 157; Patten v. United Life & Accident Ins. Co., 133 N. Y. 450.

Hor was any error committed by the learned trial court in permitting the secretary of the plaintiff to consult the diary which she kept in order to refresh her recollection of facts which were originally within her knowledge.

It is further urged that the plaintiff’s testimony was objectionable under section 834 of the Code of Civil Procedure. This section, in so far as its provisions are to be considered upon this appeal, provides >as follows:

*“A*person duly authorized to practice physic or surgery, or a professional or registered nurse, shall not be allowed to disclose any information which he acquired in attending a patient, in a professional capacity, and which was necessary to enable him to act in that capacity.”

*134If we assume that this section is applicable to a dentist, it is not at all clear that the testimony of the plaintiff as to the number of visits and the work which he did, not in the presence of the deceased, would be 'within its prohibition. Moreover, we think that it is clear-that the Legislature did not intend to include a dentist within the provisions of this section of the Code.

Strictly speaking, a dentist might be included within the description relating to those who practice “surgery;” but, as the term “ surgery ” is employed in the statute, it does not include one engaged in the practice of dentistry.

At common law communications between physician and patient were not legally privileged. Duchess of Kingston's Trial, 20 How. St. Tr. 573. The legal privilege seems first to have been recognized in New York in 1828. N. Y. R. S. 1828, II, 406, Pt. III, chap. VII, art. 8, sec. 73; 4 Wigmore Ev., sec. 2380.

To the extent, therefore, to which the privilege can now be said to exist, it must find its support in some statutory enactment. Whatever may be urged for or against the existence of the privilege, we can see no good reason for extending it by implication or construction.

In early days in England the province of the dentist was not recognized, except as it fell within the scope of the functions of the “ barber-surgeon,” whose multitudinous duties often included those not only of the barber and surgeon, but the physician and dentist as well.

Within quite recent times it was customary for barbers and blacksmiths to extract teeth. Formerly the work of filling and plating teeth was frequently performed by the jeweler. A process of integration and differentiation has taken place, and the separate and distinct profession of'dentistry has come into existence. That this specialization has resulted beneficially to the community and that dentistry has now become a highly'developed science, requiring of its practitioners advanced knowledge and skill, is doubtless true; but this fact does not militate against the construction of section 834 of the Oode of Civil Procedure, excluding a dentist from the operation of its provisions. There is clear evidence in *135the statutes of this State of a legislative intent to regard the two professions of medicine and dentistry, as separate and distinct. Thus the practice of medicine is governed by article 8 of chapter 49 of the Laws of 1909, while the practice of dentistry is regulated by a different law and applicants for admission to practice dentistry are admitted by different boards of examiners and'registry. Laws of 1909, chap. 49, art. 9.

There is also another statute of the State which, while not strictly *in pari*materia, deals with a cognate subject and should, therefore, be considered in interpreting the statute under consideration. It is not without significance that the statute, which provides for exemption from jury duty mentions not only a physician and surgeon, but provides that such exemption shall apply to *“*a practicing physician, surgeon, or *surgeon dentist"*Judiciary Law, § 635.

While we cannot find that the question presented for decision has been determined in'this State, it has been considered in the Supreme Court of Michigan, in People v. De France, 104 Mich. 563. In that case the court construed a similar statute and held that a dentist was not within the spirit of the statute which makes certain information acquired by physicians and surgeons privileged.

In that case the court said: *“*The purpose of the act is to be considered in determining whether the dentist was intended to be included within its terms. Certainly the terms ‘ dentist-’ and *‘*surgeon ’ are not interchangeable, and if a dentist is to be held a surgeon, within the meaning of this act, it must be because his business as a dentist'is a branch of surgery. It is apparent that the act relates to general prac: titioners, and to those whose business ag a whole comes within the definition of (physician ’ or *‘*surgeon.’ A dentist is one whose profession it is to clean and extract teeth, repair them when diseased and replace them, when necessary, by artificial ones.”

While the definition of a dentist here given seems to us to be too restricted, in view of the progress as a science which dentistry has recently made, we are of the opinion that the decision in the case quoted was correct and that it properly *136interpreted the meaning, which the Legislature intended, should'be given to that statute.. There are a few other cases in the books which, while not precisely in point, are sufficiently close to make them worthy of consideration. Thus, iu State v. Fisher, 119 Mo. 344, it was held that a dentist was not exempt from jury duty under a statute ex- • erupting *“*a person exercising the functions of a * * * practitioner of medicine”; and, in State v. McMinn, 118 N. C. 1239, it was held that a dentist or dental surgeon is not a *“*physician ” within the meaning of- the Oode of that State which permitted the sale of liquor on Sunday upon *“*a prescription from a physician.”

We think. that these authorities support the conclusion which *we*have.reached and that they are in accord with the reasons given above for holding that a dentist is not. included, within the meaning of section '834 of the Oode.

In arriving at this conclusion we have not overlooked Matter of Hunter, 60 N. C. 372, or State v. Beck, 21 R. I. 288, which, while not in point upon the precise question, must fairly he considered as opposed to the view which, we feel compelled to adopt.

Our conclúsion is that the objection that the plaintiff was precluded from testifying within the provisions of section 83'4 of the Oode of. Civil Procedure was properly overruled and his testimony received in evidence.

It follows that 'the judgment appealed from should be affirmed, with costs.

Guy and Cohalan, JJ., concur.

Judgment affirmed, with costs.