#### Henry *v.*New York, L. E. & W. R. Co.

*(Supreme Court, General Term, Fifth Department.*

June 20, 1890.)

L Witness—Competency—Physicians and Scboeons.

A surgeon who had been requested to examine plaintiff by his attending physician two weeks after the accident resulting in the alleged injury occurred, is not *509disqualified from testifying again st plaintiff as to the existen ce of the alleged in j uries by Code Civil Proc. § 834, which prohibits a physician from disclosing “information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity, ” where it does not appear that the witness was requested or expected to treat or prescribe for plaintiff, or that he did either.

2. Same—Disqualification—Burden of Proof.

The burden is on the party urging the disqualification of a witness as an objection to his testimony to show the existence of the facts which disqualify him from testifying.

Appeal from circuit court, Chautauqua county.

Action by George Henry against the New York, Lake Erie *&*Western Railroad Company, for injuries sustained while riding on a train of defendant as a passenger. Judgment on a verdict for plaintiff, and an order denying a motion for a new trial on the minutes, were entered, and defendant appeals.

Argued before Dwight, P. J., and Macomber and Corlett, JJ.

*J. H. Stevens,*for appellant. *Ansley & Davie,*for respondent.

Dwight, P. J.

The single exception taken by the defendant in this case must be fatal to the judgment. The action was for a personal injury alleged to have been sustained by the plaintiff when a passenger on the defendant’s road. The question litigated was of the existence and extent of the injury, the principal injury complained of being a broken rib. The defendant called as a witness a physician and surgeon, Dr. Wilcox, who testified that some two weeks after the accident the attending physician of the plaintiff brought the latter to the office of the witness, and asked him to examine the plaintiff, and see what was the matter with him, and that he made such examination, and among other things examined his ribs. He was thereupon asked, “Did you find any fractured rib?” To this question the plaintiff objected as incompetent under section 834 of the Code of Civil Procedure. The objection was sustained, and the defendant excepted.

We think the question was not shown to be within the exclusion of the statute referred to. The statute is specific in its definition of the matters which the physician is forbidden to disclose. The exclusion is confined to “information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity. ” It is clear that, to bring the case within the provision of the statute, it must appear that the relation of physician and patient existed between the examining physician and the person examined. And even that is not sufficient. It must also appear that the information obtained was necessary to enable the physician to act in that capacity. There is nothing in this case to show that Dr. Wilcox was requested or expected to treat or prescribe for the plaintiff, nor to advise in respect to his treatment, nor that he did either. So far as appears, the purpose of procuring the examination was to qualify—or, as counsel for the defendant suggests, to disqualify—the physician as a witness on the trial of the plaintiff’s action. The error of the learned court at the circuit was in holding that it was the duty of the defendant offering the testimony, to show the relation of physician and patient did not exist, and therefore that the objection did not apply. Clearly, it was incumbent upon the plaintiff to support his objection by proof of the facts necessary to bring the case within the definition upon which the objection was based. For the error of the exclusion of the testimony of Dr. Wilcox, as the case stood, the judgment and order must be reversed, and a new trial granted. Judgment and order appealed from reversed, and a new trial granted, with costs to abide the event. All concur.