I dissent. I think that the learned court fell into reversible error when it dealt with the attempt of the defendant to elicit the testimony of the physician, as detailed in the opinion of my brother Carr. The privilege asserted by the physician was that of his patient (Johnson v. Johnson, 14 Wend. 637; Zimmer v. Third Ave. R. R. Co., No. 1, 36 App. Div. 272), and in this case of the representatives of the patient. I think, therefore, that the assertion of privilege should have been made at least ultimately by them (Wigm. Ev. § 2386), and that they should not have been permitted practically to stand at gaze by assertion that they had no privilege. The witness did. not refuse to answer as to any specific ailment, but refused to name the ailment that required his professional services, and thereby indicated that his refusal was absolute and general, resting upon the professional privilege itself. . I think that in view of this attitude the defendant was not required to go forward to question the witness as to the specific ailment which the defendant had in mind. There is no indication that the disposition of the court of the inquiry could do no harm to the defendant, as was the case in Roche v. Nason (185 N. Y. 138) and in Zimmer v. Third Ave. R. R. Co., No. 1 (supra). Yet, before we can disregard the rejection of competent evidence, it should appear that such rejection could not have legitimately affected the result. (Baylies N. T. & Ap. 341, 342.) Even if the learned court had pressed the plaintiff to an assertion of the privilege, which had been sustained, it would not have been harmful, for no inference as to the facts thereby excluded could have been legitimately drawn. (Wigm. Ev. supra, and cases cited.)
Order affirmed, with costs.