Opinion
December 21, 1906.
William M. Saunderson, for the appellant.
Robert Godson, for the respondent.
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 condition 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, CLARKE and HOUGHTON, JJ., concurred.
Order modified as directed in opinion and as modified affirmed, without costs, without prejudice to right of plaintiff to make application at the trial if necessary. Settle order on notice.