Marie Lowenthal, as Executrix, etc., of Herman Lowenthal, Deceased, Appellant, v. Alfred D. Leonard, Respondent

Marie Lowenthal, as Executrix, etc., of Herman Lowenthal, Deceased, Appellant, v. Alfred D. Leonard, Respondent. Inspection and diseorery of the books of d deceased physician—when it will not be granted before trial where the books contain, confidential statements of his patients. An order for an inspection and discovery of the books of a deceased physician, which contain records of privileged and confidential statements made to him by his patients, should not be granted on the alleged ground that they would show entries tending to prove that false representations as to the volume of his business had been made by the physician to the moving party, by which the latter was induced to enter into a contract with him, when it does not appear that all the information thus available may not be obtained from such books produced under subpoena at the trial. Appeal by the plaintiff, Marie Lowenthal, as executrix, etc., of Herman Lowenthal, deceased, 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 19th day of May, 1897, granting the defendant’s motion for a discovery and inspection of the plaintiff’s books. Herbert Reeves and Ambrose G. Todd, for the appellant. Philo P. Stafford and Charles Donohue, for the respondent. [MAJORITY — Per Curiam :] Per Curiam : This order should be reversed. A sufficient, reason for an inspection and discovery before the cause is' brought to trial was not shown It was claimed by the moving party that the books of .the plaintiff’s testator would show that entries are contained therein tending to prove false representations made by the testator as an inducement to the defendant to enter into the. contract with him referred to in the moving papers. But the books, an inspection of which is sought* are of such a character, containing as they do the records of privileged and confidential statements of patients made to a deceased physician, that the order allowing extracts or data from them should not have been made. Marie Lowenthal swears that all of the entries in' the books contain memoranda of information and communications received from the patients of the testator, who was, at the time the entries were made, a practicing physician. It is not shown that all the information the defendant desires from them for a legitimate purpose may not be had at the trial as well as before the trial. These books are in the possession of the plaintiff and can very readily be produced at the trial under subpoena. The extent of the business of the plaintiff’s testator, so far as that may be determined from the record of persons treated by him at his house, can be made just as available at the trial as before, and on the trial, under the direction of a discriminating judge, there can be no abuse of the right of examination of the books, or betrayal of the confidential matter , which is recorded "in them. The order appealed from should be reversed and the motion ■ denied, with ten dollars costs. Present—Van Brunt, P. J., Rumsey, Patterson, Ingraham and Parker, JJ. Order reversed and motion denied, with ten dollars costs and disbursements.