Citation Numbers: 99 A.D. 72, 91 N.Y.S. 362
Judges: Chester
Filed Date: 7/1/1904
Status: Precedential
Modified Date: 1/13/2023
Counsel for the appellant relies upon a single exception to secure a reversal of this judgment.
On the trial the medical examiner who wrote her answer for her testified that he put it down just as she gave it, and that he was positive she answered, “No.” Her husband, the plaintiff, on the other hand, testified that he was present and heard the question asked, and that her answer was, “ Not that she knew of.” It was shown that on the 13th day of October, 1902, she gave birth to a still-born child. The physician who attended her at that time was sworn for the defendant. He was asked as to the age of that child. The question was objected to as incompetent under section 834 of the Code of Civil Procedure. Upon being examined by plaintiff’s counsel preliminary to a ruling upon this question, he testified: “ I was attending Mrs. Van Bergen in a professional capacity. * * * I visited her and prescribed for her as her physician. Whatever I know or learned I knew and learned in that capacity. Such information was necessary to enable me to treat the case.” The former question as to the age of the child was withdrawn and the following question was asked in place thereof: “ Q. How many days or months of gestation had elapsed between the conception of that child and the time of its birth ? ” This was objected to on the same ground. The objection was sustained and the defendant excepted.
The purpose of the question clearly was not to ascertain the age of the child en venire sa mere, but was to show the length of time the mother had been pregnant and to show that she was in that condition and knew it when she made her application. The burden was upon the plaintiff to show, if it did not otherwise appear, that the information sought by the question was within the statutory exclusion. (Edington v. Ætma Life Ins. Co., 77 N. Y. 571.) This burden was satisfied when the plaintiff procured from the witness the statement that whatever he learned he learned in his professional capacity as a physician and that such information was neces
More than this, the question objected to was broad enough to permit the witness to give in answer thereto any information which the mother had given to him, as well as any which he might have obtained solely from an inspection of the child.
We think that the ruling excepted to was correct and that the judgment and order should be affirmed, with costs.
Judgment and order unanimously affirmed, with costs.