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Harry Griffiths, an Infant, v. Metropolitan Street Railway Co.

ment, the trial judge is the sole judge of its admissibility, notwithstanding the physician's statement to the contrary (Bacon v. Frisbie, 80 N. Y. 399). The decision of the question of fact which arises under such circumstances rests in the discretion of the trial judge, subject to review by the Appellate Division. Where, however, there is nothing to show that it was necessary for this purpose, it does not fall within the condemnation of the statute. The information sought need not be confidential in its nature (Renihan v. Dennin, 103 N. Y. 573), but it must appear in some way that it was necessary to enable the physician to act in his professional capacity. It is true that in Feeney v. L. I. R.R. (116 N. Y. 375, 380) Judge Vann quotes with approval the language of the opinion in Edington v. Mut. L. Ins. Co. (67 N. Y. 185, 194) to the effect that where a physician has attended a patient professionally, and is called to testify as to information secured from the patient, "it must be assumed from the relationship existing that the information would not have been imparted except for the purpose of aiding the physician in prescribing for the patient." But what was said in the Feeney case was proper in both cases in view of the facts there presented. In the Feeney case the plaintiff had consulted the physician in his professional capacity the day after she was hurt. The physician was asked whether he had conversed with her about her injuries, and whether he made an examination of her at that time. Both questions were held to have been properly ruled out. In that case every element necessary to bring the questions within the prohibition of the statute was present. The relation of physician and patient was established, the witness was attending in his professional capacity, and the information which he obtained from the patient was plainly neces sary to enable the witness to act in that behalf. In the Edington case the information given to the physicians was plainly necessary to enable them to act in their professional capacity. In Renihan v. Dennin (103 N. Y. 573) Judge

Harry Griffiths, an Infant, v. Metropolitan Street Railway Co.

Earl said: "It is not disputed, and could not well be, that the information obtained by the witness was necessary to enable him to act in his professional capacity." In Grattan v. Met. Life Ins. Co. (80 N. Y. 281, 296) the questions excluded were plainly within the prohibition of the statute, and the court was careful to limit the rule there laid down to the particular circumstances of that case.

We think the plaintiff in the case at bar did not successfully sustain the burden of showing that the evidence excluded was within the prohibition of the statute. In arriving at this conclusion we are not laying down a general rule. The statute states the general rule and we simply decide that the peculiar facts of this particular case do not come within its operation.

The judgment of the Appellate Division should be reversed and a new trial granted, with costs to abide the event.

PARKER, Ch.J.; BARTLETT, HAIGHT, MARTIN and CULLEN, JJ., concur; VANN, J., not voting.

Judgment reversed, &c.

In re Application of Caroline Smith v. Lawrence P. Mingey.



§ 755.

Accounting by Guardian Ad Litem. Death of General Guardian Who
Instituted Proceeding-Continuance in Name of Real Party
in Interest-Failure to File Exceptions to
Referee's Report.

In a proceeding instituted by the general guardian of an infant to compel an accounting by a guardian ad litem, where the general guardian died and the infant became of age after the hearing of the motion, but before the making of an order of reference to take and state the guardian's accounts. Held that the right to an accounting was not thereby destroyed, and the proceeding did not abate.

After the death of the general guardian and the ward had attained her majority, all that was necessary was a suggestion of these facts upon the record and that the proceeding be continued thereafter in the name of the real party in interest.

The order confirming the referee's report was entitled "In the matter of the application of E. J., formerly E. R." Held that, under the circumstances, the change of title was all that was necessary; that such change at most was a mere matter of form, and that the appellant was not prejudiced in any way by such method of proceeding.

An order confirming the referee's report, so entitled, effectively binds the former infant and protects the appellant.

Failure to file exceptions to the report of the referee until after the

time provided by rule 30 of the General Rules of Practice expired, made the referee's report final as far as the appellant

In re Application of Caroline Smith v. Lawrence P. Mingey.

was concerned, he not presenting a sufficient excuse for such failure to justify the granting of an application for additional time.

Van Brunt, P.J., dissents.

(Decided May, 1902.)

Appeal from two orders, one directing a guardian ad litem to pay over certain moneys, and one denying an application to file exceptions to a referee's report.

George H. Balkam, for appellant.
Lawrence E. Brown, for respondent.

MCLAUGHLIN, J.-On the 25th of May, 1899, Caroline Smith was appointed the general guardian of Elizabeth Roessner, an infant, and in October following she instituted this proceeding to compel the defendant to pay to her certain moneys which he had collected for her ward. The papers upon which the order requiring the appellant to show cause why he should not pay over such moneys was made showed that at that time the ward had become 21 years of age. The appellant, in response to the order to show cause, filed an account of his proceedings, which the court instead of passing upon (certain objections having been made to some of the items), sent to a referee, with directions to take and state the same and make a report thereof. After several hearings had been had before the referee, the appellant objected to the continuance of the proceeding upon the ground that the general guardian was dead and that her ward was then over 21 years of age. The objection was overruled and an exception taken. The objection was properly overruled, because at the time the same was made there was no proof before the referee establishing the death of the general guardian or that her ward was over 21 years of age, other than set forth in the papers upon which the original order was based. At a subsequent hearing, however, it did appear

In re Application of Caroline Smith v. Lawrence P. Mingey.

that the general guardian was dead (she having died on the 19th of December, 1899), and that her ward was, at the time the order of reference was made, over 21 years of age. But these facts did not destroy the right to an accounting, nor did the proceeding instituted for that purpose abate by reason thereof (sec. 755 of the Code of Civ. Pro.). After the death of the general guardian and the ward had attained her majority, all that was necessary was a suggestion of these facts upon the record, and that the proceeding thereafter be continued in the name of the real party in interest (Breese v. Met. Life Ins. Co., 37 App. Div. 152). The appellant, however, seems to have been content with continuing the proceeding without objection, notwithstanding such suggestion was not then made upon the record. Several hearings were thereafter had, and he did not object in any way to what was done, nor does the record disclose a single objection in this respect until after the hearing had been closed, when he contented himself with moving to dismiss the proceeding upon the ground, among others, that "the referee acts and continues this proceeding without jurisdiction and without power," and there is no exception to the denial of the motion, as indicated by the final report of the referee. The referee, in his report, called the court's attention to the fact that the general guardian had died, and that her ward had attained the age of 21 years, and the court thereupon, in the order made confirming the referee's report, entitled it: "In the matter of the application of Elizabeth Johnson, formerly Elizabeth Roessner." This, we think, under the circumstances, is all that was necessary. The change in title, at most, was a mere matter of form (Mapes v. Snyder, 59 N. Y. 450). The appellant was not prejudiced. in any way by this method of procedure. Had he desired. to have the proceeding continued in the name of the real party in interest, as soon as it appeared that the general guardian was dead he could have taken the necessary proceedings for that purpose. This, however, he did not see

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