Reinhan v. Dennin

• Decision Date: 07 December 1886
• Citation: 103 N.Y. 573,9 N.E. 320
• Parties: REINHAN v. DENNIN.
• Court: New York Court of Appeals Court of Appeals

103 N.Y. 573

9 N.E. 320

REINHAN

v.DENNIN.

Court of Appeals of New York.

December 7, 1886.

In the matter of the probate of the will of James Dennin, deceased. Judgment for executrix and proponent, Martha A. Dennin. Contestants appeal.

E. Countryman, for appellant, Reinhan.

C. E. Patterson, for respondent, Dennin.

EARL, J.

The surrogate of Rensselaer county admitted to probate the will of James Dennin, deceased. Upon appeal to the general term the surrogate's decree was reversed, and special issues as to the competency of the testator and the due execution of the will were ordered to be tried before a jury. The trial came on, and it appeared that the will was executed in the evening, a short time before the testator's death, and that during the same evening, before the execution of the will, Dr. Bontecon was requested by the attending physician to be present at the testator's house for consultation with him relative to the testator's condition and treatment, and, in pursuanceof such request, he did attend. He was called as a witness for the contestants, and testified that he saw the testator, and advised a prescription for him. The following questions were put to him: ‘Will you describe the appearance and condition of the sick man when you got into the room?’ ‘At the time you examined this man, was he, in your judgment, in that state known to your profession as ‘collapse?” ‘Was he, in your judgment, in a dying condition?’ ‘State whether, in your judgment, at any time after that occasion when you were there, James Dennin was in such a condition that he was capable of understanding and taking into account the nature and character of his property, and of his relations by blood and marriage, to those who were or might become the objects of his bounty, and make an intelligent disposition of his property by will.’ The same question was repeated, confining it to the time when the witness saw the testator. All the questions were objected to on behalf of the proponent as incompetent under sections 834 and 836 of the Code, and the objections were sustained, and counsel for the contestants excepted, and the sole question for our determination upon this appeal is whether that exception was well taken.

Section 834 is as follows: ‘A person duly authorized to practice physic or surgery shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, which was necessary to enable him to act in that capacity;’ and section 836 provides that that section applies to every examination of a person as a witness, unless the provisions thereof are expressly waived by the patient.

Dr. Bontecon was a person duly authorized to practice physic. Whatever information he had about the condition of the testator he acquired while attending him as a patient. It is true that the testator did not call him, or procure his attendance; but he did not thrust himself into his presence or intrude there. He was called by the attending physician, and went in his professional capacity to see the patient, and that was enough to bring the case within the statute. It is quite common for physicians to be summoned by the friends of the patient, or even by strangers about him; and the statute would be robbed of much of its virtue if a physician thus called were to be excluded from its provisions, because, as contended by the learned counsel for the appellant, he was not employed by the patient, nor a contract relation created between him and the patient. To bring the case within the statute it is sufficient that the person attended as a physician upon...