(dissenting) :
Judgment for the defendant was entered in this action upon a general verdict .of a jury in its favor. The plaintiff’s appeal from that judgment is brought up on what may be called a bill of - exceptions, presenting but a single question which relates to the competency of testimony of a physician as to statements made by the plaintiff to him concerning a subject in no way connected with the issues in the case, except, perhaps, as to the question of damages. *31The action was brought to recover damages for personal injuries claimed, to have been sustained by the plaintiff through the negligence of the defendant’s servants in managing or operating a street railway car. The record before us gives no information as to the alleged accident in which the plaintiff suffered injury, how it occurred, what the fault or negligence ascribed to the defendant’s servants may have been, nor anything upon the subject of contributory negligence. The verdict of the jury being a general one, either or both of the issues of negligence of the defendant and the want of contributory negligence of the plaintiff must have been found in the defendant’s favor.
It appears in the record before us that the plaintiff had testified that some seventeen years before the accident occurred he had suffered from serious illness in Germany for a period of about seven years, during the greater part' of which time he had been in a hospital and confined to his bed. The defendant called as a witness a physician connected with a hospital in the city of New York, to which the plaintiff resorted for treatment, after the alleged accident referred to in the complaint. That physician was permitted to testify that he treated the plaintiff, who was suffering from a very rare disease of so interesting a character that the plaintiff was exhibited before a society of physicians at a public meeting and an account of the plaintiff’s peculiar disease was published by the witness in the New York Medical Journal, and he swore that the account was published with the plaintiff’s knowledge and approval. In the course of his examination this witness was asked the following question: “ Q. Now then prior to the preparation of the article published by you in the Medical Journal of February 1st, 1896, did this plaintiff tell you that seventeen years previously he had severe pains in the legs lasting day and night and forcing him to stay abed for fully seven years % ” That was objected to on the ground that it was privileged. The objection was overruled. This question was in no way related to the subject-matter of the action so far as the issues upon which the question of the liability of the defendant depended. Assuming that all communications made by the plaintiff to this physician were privileged and he was improperly allowed to give this testimony, it still remains that it has been found by the jury that the defendant is not responsible for any injuries sustained by *32the. plaintiff in this, action, and we are concluded by that finding. If there is no liability of the defendant, the question sought to be raised on this record is a moot one. It is said that the testimony affected the credibility of the plaintiff, but that is pure assumption, for what the plaintiff testified to with respect to the main issues does not appear. On the finding of the jury there was no negligence of the defendant’s servants, and, therefore,' there could have been no recovery.
The judgment appealed from'should be affirmed, with costs.
Judgment reversed, hew trial ordered, costs to appellant to abide event.