Rodner v. Buchman , 246 A.D. 777 ( 1935 )

Order in so far as it disallows on the settlement thereof certain interrogatories propounded by the plaintiff to a medical witness, affirmed, with ten dollars costs and disbursements. While the general doctrine is (under the provisions of rule 126 of the Rules of Civil Practice) that upon a settlement of interrogatories, questions that are pertinent to the issue in an action may not be disallowed and that questious subject to objection on the ground of incompetency must await rulings thereon at the trial, that doctrine may not be given such effect as to result in a violation of section 352 of the Civil Practice Act. That section, the purpose of which is to prevent disclosure, is to be read in connection with rule 126 and its ban on disclosures given effect in the absence of an express or implied consent of the patient to whom the privilege belongs, under section 352. Here the patient is not a party to the action and has not begun an action based on the accident which is the basis of the plaintiff husband’s action. There is nothing in the record to indicate that the patient has consented, directly or indirectly, to a disclosure. To allow the propounding of the interrogatories objected to would result in an unlawful disclosure, and the right, as an exception to the general rule, to prevent that disclosure exists at the time the interrogatories are settled. Young, Hagarty, Carswell, Davis and Johnston, JJ., concur.