It does not seem to me that we are compelled by statutory mandate to deny to a legislative committee whose avowed purpose is to uncover abuses the right to ascertain the facts.
As has been pointed out, at common law the information acquired by physicians or nurses acting in a professional capacity was not privileged. (Buffalo Loan, Trust Safe Deposit Co. v. KnightsTemplar Masonic Mut. Aid Assn., 126 N.Y. 450, 454; People v.Austin, 199 N.Y. 446, 451. See Wigmore on Evidence [3d ed.], § 2380.) But this State, in 1828, was responsible for the legislative innovation embodying *Page 303 such a doctrine. (Wigmore, op. cit., § 2380; Howe v.Regensburg, 75 Misc. Rep. 132, 134.) However, long ago, in construing this new privilege created by statute, this court stated that "the primary purpose of the section was to declare the rule governing the examination of a physician as a witness in judicial proceedings." (Buffalo Loan, Trust Safe Deposit Co. v. Knights Templar Masonic Mut. Aid Assn., 126 N.Y. 450,454.) In the case at bar we are concerned with a "legislative proceeding" to which the statutory rule should not be extended unnecessarily. The distinction seems eminently sound. In a "judicial proceeding" the Legislature has specified in the Civil Practice Act that no disclosure shall be made. But where we are concerned with a "legislative proceeding," there arises the transcendent interest of the People of the State in the enactment of proper laws for the conduct of government, as to which it is not unreasonable to require that the protection of the individual by privilege must bow as against the welfare and protection of large masses of citizens. It is urged that if we so deal with the physician-patient privilege we must accord like treatment to other privileges, but this does not follow since each privilege rests upon its own background.
Upon the results of the investigation for which the withheld information is sought in the case at bar, depends the action of the City Council in reference to the management of the city's own Lincoln Hospital, perhaps vitally necessary for the protection of the public of the city of New York. I am unwilling to assent, therefore, to the proposition that the State Legislature or its delegated authority, the City Council, are so circumscribed that the alleged maladministration may continue unchecked, by virtue of a "liberal construction" of section 352 of the Civil Practice Act.
The orders should be affirmed.
LOUGHRAN, RIPPEY, SEARS and LEWIS, JJ., concur with LEHMAN, Ch. J.; FINCH, J., dissents in opinion in which CONWAY, J., concurs.
Orders reversed, etc. *Page 304