#### Morris I. Schamberg, Plaintiff, *v.*Malcolm D. Whitman, Defendant.

(City Court of New York, Trial Term,

January, 1912.)

Witnesses — Capacity and competency of witnesses in general — Competency dependent on knowledge of facts.

Pleading — Motion to strike out pleading or defense.

The provision of section 834 of the Code of Civil Procedure, prohibiting the disclosure of information acquired by and neces*216sary for a person duly authorized to practice physic or surgery to act in his professional capacity, is not intended to deprive him of his cause of action for professional services if he can prove them hy legal evidence; nor is said section limited to witnesses or qualified by section 836 of said Code.

Allegations in a complaint to recover the reasonable value of services rendered by plaintiff as a surgeon, which disclosed information acquired by him while attending defendant and which was necessary to enable him to act as a surgeon, are improper and will be stricken out on motion before the service of the answer.

Motion to strike out certain allegations of the complaint in an action by a surgeon to recover for professional services.

Bamberger & Lowenthal, for plaintiff.

Hyman & Campbell, for defendant.

La Fetba, J.

This is an action by a surgeon to recover the reasonable value of his services after a refusal by the patient to pay the amount demanded. The patient (the defendant) moves to strike out many of the allegations of the complaint, as he will otherwise he compelled to answer them.

The complaint discloses information which was acquired hy the plaintiff while attending the defendant in his professional capacity and which was necessary to enable him to act in that capacity. The defendant contends that section 834 of the Code of Civil Procedure is a rule of evidence; that it does not relate tó-pleadings or parties, but is limited to witnesses and qualified by section 836.

For the purpose of determining the effect of the different provisions of the Code of Civil Procedure with respect to each other they are deemed to have been enacted simultaneously, and the rule of strict construction is hot applicable. §§ 3345, 3355. Bead in connection with the sections in relation to Code pleading, plaintiff may proceed with his action without either directly or indirectly violating the provisions of section 834. He may set forth a plain and concise statement of facts without unnecessary repetition (§ 48-1) ; that is to. say, the issuable or ultimate facts, and not the .evidence of those. facts. Halstead v. Halstead, *1*Misc. Rep. 23. The *217Legislature never intended to deprive a physician of his cause of action for services if he could prove them by proper evidence. The prohibition was against the disclosure of information acquired by and necessary for him to act in his professional capacity. The form in which such statements are made is of no consequence. In Buffalo Loan, T. & S. D. Co. v. Knights Templar & M. M. A. Assn., 126 N. Y. 450, Judge Andrews, speaking for a unanimous court, said: *“*The disclosure by a physician of information acquired in his professional capacity in attending a patient, when not made in the course of his professional duty, is a plain violation of professional propriety. * * * The statute should have a broad and liberal construction to carry out" its policy. By reasonable construction it excludes a physician from giving testimony in a judicial proceeding in any form, whether by affidavit or oral examination, involving a disclosure of confidential information acquired in attending a-patient, unless the seal of secrecy is removed by the patient himself.” As was said by O’Brien, J.., in Davis v. Supreme Lodge, Knights of Honor, 165 N. Y. 159, 163: “ They are excluded not only for the purpose of protecting parties from the disclosure of information imparted in the confidence that must necessarily exist between physician and patient, but-on grounds of public policy as well. The disclosure by a physician, whether voluntary or involuntary, of the secrets acquired by him while attending upon a patient in his professional capacity, naturally shocks our sense of decency and propriety, and this is one reason why the law-forbids it. The form in which the statements are sought to be introduced is of no consequence, whether as a witness on the stand or through the medium of an affidavit or certificate. All are equally under the ban of the statute.” 'See also Beglin v. Metropolitan Life Ins. Co., 173 N. Y. 374; McGillicuddy v. Farmers’ Loan & Trust Co., 26 Misc. Rep. 55; McEvitt v. Maass, 33 id. 553.

Motion granted, with costs, by striking out paragraph 2; the last two lines of paragraph 6; the whole of paragraph 7; the whole of paragraph 8, excepting the first three lines thereof; the whole of paragraph 9, excepting the first line and the word “ plaintiff ” in the second line thereof; the *218whole of paragraph 10, excepting the first line and the words *“*said office ” in the second line thereof; the whole of paragraphs 11, 12, 13, 14 and 15; the whole of paragraph 16, excepting the first line; the whole of paragraph 17/ excepting the first line and the words “ said office ” in the second line thereof; the same as to paragraphs 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 and 28; the whole of paragraphs 29 and 33, and the last two lines of paragraph 31, with the exception of the figures *“*$500.00.” ■ Should the plaintiff desire to serve an amended complaint he may do so upon payment of the motion costs granted herein.

Motion granted.