Anton Geis, Appellant, v. Elizabeth Geis, Respondent

Anton Geis, Appellant, v. Elizabeth Geis, Respondent. First Department, December 21, 1906. Husband and wife — action for annulment for physical incapacity — practice—physical examination before trial — evidence—form of stipulation waiving privilege of physician from testifying. As the privilege of 'a physician from testifying against a patient can be waived prior to trial only by a stipulation of the attorneys of the respective parties as provided’ by section 836 of the Code of Civil Procedure, an order denying a physical examination before trial on condition that the defendant waive the privilege of physicians who had already examined her, should provide that the stipulation for such waiver be signed by the attorneys for the parties. Where a husband sues to annul his marriage on the ground of the physical inca pacity of his wife and moves for a physical examination before trial and the defendant replies that she has been examined by three physicians whose privilege she will yraive, the court in denying the motion should require a stipulation waiving the privilege to be signed by the attorneys of the parties. Appeal by the plaintiff, Anton Geis, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16tli day of October, 1906, denying the nlaintiff’s motion for a physical examination of the defendant. ' ■ William M. Saunderson, for the appellant. Robert Godson, for the respondent. [MAJORITY — Patterson, P. J.:] Patterson, P. J.: In this action the plaintiff seeks a decree annulling his marriage with the defendant on the ground of her physical incapacity. to enter into the married state. After the defendant had interposed an answer, in which she denies that allegation, the’ plaintiff moved for an order requiring her to submit to a physical - examination. On the hearing "of that motion the defendant showed that she had already submitted to such an examination by three physicians who attended her and who were competent to testify, and she insists that she should not again be submitted to the indignity of a further examination, as abundant evidence upon the subject of her conditian could be given by those physicians. The learned judge at Special Term denied the motion on condition that the defendant should stipulate to waive the provision of section 834 of the Code of Civil Procedure and consent that such physicians, or any of them, by whom she had been theretofor examined may testify as to her physical condition. Accordingly such a stipulation was signed by the defendant and acknowledged by her. The provision of section 834 of the Code prohibits a physician or professional or registered nurse from disclosing information acquired in attending a patient in a professional capacity and necessary to enable him to act in that capacity. But by section 836 of the Code it is provided that a patient may waive this right of secrecy by making such waiver in open court on the trial of the action or proceeding. It also provides that a paper executed by a party prior to the trial providing for such waiver shall be insufficient as such a waiver, but that the attorneys for the respective parties • may, prior to the trial, stipulate for such waiver, and the same shall be sufficient therefor. , In the waiver annexed to the motion papers the attorneys did not stipulate therefor. We see no reason for differing from the judge at Special Term in his conclusion that a physical examination should not be required at the present time. But the order should be modified so that there can be no question at the trial as to the sufficiency of the waiver. Therefore, in addition to' the stipulation appearing in .this record, the order should require that the attorneys for the defendant sign the stipulation in accordance with the provisions of section 836 of the Code above referred to. As modified, the order appealed from will be affirmed, without costs. ■ This decision is without prejudice to the right of the plaintiff . to make an application at the trial if it should become necessary. Ingraham, McLaughlin, Clarice and Houghton, JJ., concurred. Order modified as directed in opinion andas modified affirmed, without costs, without prejudice to right of plaintiff to make application at the trial if necessary. Settle order on notice.