The defendant appeals from a judgment convicting him of perjury, committed upon the trial of a civil action for damages brought by him against the Metropolitan Street Railway Company, The principal question raised upon the appeal is as to the competency of certain physicians to testify against the defendant. The- charge against the defendant included the allegation that upon the trial of the civil action he. had testified that, prior to .the accident upon which his action was based, he had been in good physical health and condition, and that as a result of the accident his health and physical condition had been seriously impaired, whereas in truth and fact, as the indictment charged, he had not prior to the accident been in good physical condition, having been diseased and partially paralyzed.
"Upon the trial of the civil action several physicians were called by the railway company, who testified without objection from the present defendant, plaintiff in that action, as to their treatment of him prior to the alleged accident, and as. to what they then discovered concerning his health and physical condition. Upon the trial of the prosecution upon the indictment, these same physicians were called by the People to repeat the testimony given by them upon the trial of the civil action. Their testimony was received *773under objection and exception, and its reception is now assigned as error. The argument advanced by the learned district attorney in support of the conviction rests upon the proposition that the right to object to the testimony of a physician is personal to the patient, and may be waived by him, and if once waived is gone forever. This was undoubtedly the rule prior to the amendment of section 836 of the Code of Civil Procedure by chapter 53 of the Laws of 1899. (McKinney v. Grand Street, etc., R. R. Co., 104 N. Y. 352.) Section 836 as it now reads,* however, provides that “ The last three sections (relating to the testimony of a clergyman, physician or lawyer) apply to any examination of a person as a witness, unless the provisions thereof are expressly waived upon the trial or examination by the person confessing, the patient or the client. * * * The waivers herein provided for must be made in open court, on the trial of the action or proceeding, and a paper executed by a party prior to the trial providing for such waiver shall be insufficient as such a waiver.” There can be no doubt that this case falls within the strict letter of the statute. The trial of which the statute speaks clearly means the trial at which the evidence is offered, or at least the .trial of an action between the same parties for the same cause of action. In Schlotterer v. Brooklyn & N. Y. Ferry Co. (89 App. Div. 508) the defendant was allowed to avail itself upon one trial of a waiver of privilege on the part of the plaintiff upon a former trial. It is true that they were different actions, but they were between the same parties upon the same cause of action. The plaintiff was nonsuited in the first action, and instead of seeking a retrial of that action, began a second one for the same cause. The court dwelt upon these circumstances and was influenced thereby in arriving at the conclusion that the evidence had been properly received, holding that, in effect, the second trial amounted to a retrial of the same action. In Clifford v. Denver & Rio Grande R. R. Co. (188 N. Y. 349) the plaintiff had taken out a commission for the examination of a physician, and he had been examined upon interrogatories and cross-interrogatories. After the commission had been returned the plaintiff refused to read from it at the trial, whereupon the defendant sought to do so against the plaintiff’s objection. The trial justice sustained the objection, but the *774Court of Appeals after a careful and exhaustive review.of the course of legislation upon the subject, and an examination of many authorities, held that the evidence should have been received. It was held that the. examination of a witness under a commission for the purpose of obtaining his testimony for use on the trial may be considered, so far as concerns the applicability of section 836 of the Code, as part of the trial in substance and effect.
Meither of these cases go to the extent to which we should be obliged to go in order to sustain the present conviction. ■ Meither actually nor constructively coiild. the defendant’s-trial upon an indictment for perjury be coñsidered as a part of the trial of the action between himself and the railway company, or even as a retrial of the' civil action. The criminal action is a new action between different parties and upon different issues. We are of opinion, therefore, that the evidence of the physicians was improperly received. The defend7 ant criticises the form of the indictment because it does not, in terms, allege that the defendant swore “ falsely upon the trial. Although that word is nofi specifically used, the indictment does in positive and unmistakable language allege that the testimony given by him was false, and this under the present system of pleading in criminal causes is sufficient. (People v. Clements, 107 N. Y. 205.) The judgment, of conviction should, be reversed and a new trial granted.
McLaughlin, J., concurred.
Judgment affirmed.
Amd. by Laws of 1904, chap. 381.— [Rep.