On September 9,1951, Eva Coddington of Kingston, New York, an unmarried woman about seventy-five years of age, died at the Hudson River State Hospital to which she had been admitted on July 24, 1951. The cause of death was a generalized arteriosclerosis, senile psychosis paranoid type. The interval between the onset of the disease and death was four years.
The issue is whether she possessed testamentary capacity when, on February 13, 1951, she executed an instrument purporting to be her last will and testament.
By that instrument she bequeathed various articles of personalty to two second cousins, a third cousin, the minister of the church which she attended, who was named executor, and a friend, Margaret Winfield. She devised her residence to one of the second cousins, Daisy Quick, and the friend, Margaret Winfield, as joint tenants. If either of them predeceased her, the survivor was to have exclusive ownership of the property. The residue of her estate was bequeathed to two friends, Elizabeth H. Hendricks and Mary McCullough. In the event that either of the residuary legatees predeceased her, such legatee’s share was to go to the Home for the Aged in Kingston. If both predeceased her, the whole of the residuary estate was to go to said Home. Paragraph Tenth, which followed the dis-positive paragraphs, provided: “ My sole distributees are my nephew, Cornelius D. Coddington, of Troy, New York, and my niece, Muriel Southworth, of West Sand Lake, New York. However, I make no provision in this Will for either my nephew, Cornelius D. Coddington, or my niece, Muriel Southworth, since it is my wish that my property shall be disposed of in accordance with the foregoing terms of this Will.”
The instrument was propounded in the Ulster County Surrogate’s Court by Reverend William R. Peckham, the executor named therein. Decedent’s nephew and niece were cited to show cause why the propounded instrument should not be admitted to probate. The nephew filed an objection to probate upon the *185sole ground of alleged lack of testamentary capacity. No objections were filed by the niece.
The Surrogate, after trial without a jury, admitted the instrument to probate and imposed costs upon objectant personally. The Appellate Division, Third Department, affirmed, unanimously, that part of the Surrogate’s decree which admitted the instrument to probate, but modified that part which adjudged costs against objectant personally. Objectant appeals as of right to this court from the order and decree of affirmance. No appeal is taken by the petitioner from that part of the decree making costs payable out of the estate instead of by objectant personally.
On this appeal the objectant contends: (1) that the evidence as a whole, as a matter of law, supports no other conclusion but that the testamentary provision wherein testatrix stated that she was not making beneficiaries of her sole two surviving distributees — the niece and nephew — was caused by an insane delusion that she entertained concerning them, viz., that they had been stealing or removing from her home various articles of furniture and other personal belongings; (2) that the Surrogate erred when he sustained objections to certain questions propounded to Dr. Olivet by contestant’s counsel; (3) that the Surrogate committed prejudicial error when he excluded from evidence the records of the Hudson River State Hospital where testatrix died, and (4) that the Surrogate committed other errors in ruling on objections to certain questions propounded to lay witnesses.
With respect to (1): The Judges of this court are all agreed that the evidence bearing upon the question of whether or not an insane delusion dictated the provision whereby testatrix declared that: “ I make no provision in this Will for either my nephew * * * or my niece * * * ”, is conflicting. Accordingly,, that question is one of fact and not reviewable in this court.
With respect to (4): The Judges of this court are all agreed that what counsel for contestant sought of each of the lay witnesses, by the questions objected to, was an opinion. It is established that lay witnesses are not permitted to express an opinion upon the question of mental capacity. They may *186only state their contemporary impressions as to the rationality or irrationality of the conversations or conduct testified to by them (Matter of Myer, 184 N. Y. 54, 60). Accordingly, the Surrogate’s ruling on the questions propounded by contestant to the lay witnesses was correct.
With respect to (2): Counsel for objectant contends that the Surrogate erred in sustaining objections to the following, and similar questions, propounded by him to Dr. Olivet, testatrix’ physician:
“ Q. Did this general arteriosclerosis manifest itself in that way during the time that you treated her?
“ Q. Now in the treatment of this patient, Eva Coddington, did you observe any such mental changes?
“ Q. Was she then still suffering from a generalized arteriosclerosis?
“ Q. Can you tell us, Doctor, what was the physical and mental condition of the decedent in the month of January, 1951? ”
These questions were objected to upon the ground that they called for privileged communications between physician and patient prohibited by section 352 of the Civil Practice Act. Counsel for proponent stated: “I want to make the position of the proponent here absolutely clear. We do not for an instant say that this physician cannot testify to anything. What we do say is that he cannot testify as to any confidential communication or as to any matter which would tend to disgrace the memory of the patient. I am objecting to this question upon the same grounds that I objected to the question in the Cashman case [Matter of Cashman, 159 Misc. 881, affd. 250 App. Div. 871, affd. 280 N. Y. 681], that the question is entirely too broad * * (Emphasis supplied.)
At common law communications made by a patient to his physician for the purpose of receiving medical treatment, even though made in strictest confidence, were not privileged (Edington v. Aetna Life Ins. Co., 77 N. Y. 564, 569; Duchess of Kingston’s Case, 20 How. St. Tr. 573, 613).
In New York in 1828 a statutory innovation was made establishing the privilege. (See 8 Wigmore on Evidence, § 2380.) The privilege is now contained in section 352 of the Civil Prac*187tice Act: “A person duly authorized to practice physic or surgery, or dentistry, or a registered professional or licensed practical nurse, shall not be allowed to disclose my information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity * * (Emphasis supplied.)
The reasons which induced the Legislature to make such communications privileged are clearly indicated in Edington v. Mutual Life Ins. Co. (67 N. Y. 185, 194 [Miller, J., 1876]): " It is a just and useful enactment, introduced to give protection to those who were in charge of physicians from the secrets disclosed to enable them properly to prescribe for diseases of the patient. To open the door to the disclosure of secrets revealed on the sick bed, or when consulting a physician, would destroy confidence between the physician and patient, and, it is easy to see, might tend very much to prevent the advantages and benefits which flow from this confidential relationship.”
In that case we held (pp. 194-195) that the prohibition against a physician’s disclosure of information acquired while attending a patient “ means not only communications received from the lips of the patient but such knowledge as may be acquired * * * from the statement of others who may surround him at the time, or from observation of his appearance and symptoms. Even if the patient could not speak, or his mental powers were so affected that he could not accurately state the nature of his disease, the astute medical observer would readily comprehend his condition. Information thus acquired is clearly within the scope and meaning of the statute.”
So, it will be seen that in 1876, when the case of Edington v. Mutual Life Ins. Co. (67 N. Y. 185, supra) was decided, the privilege existing between a physician and his patient was so broad that a physician could not testify even as to knowledge gained from observation of his patient’s appearance during the period of attendance.
Three years later in 1879, this court decided the case of Edington v. Aetna Life Ins. Co. (77 N. Y. 564, supra). That was an action upon two policies of life insurance. In his applications the insured warranted that he was then in good health and sound body and that he had not during seven years pre*188vious thereto had any severe disease. He died within three years after making application for the insurance. Upon the trial it appeared that the death of the insured was caused by nervous apoplexy. The insurer offered to prove that death was the result of some disease of long standing.
A physician who had at one time attended the insured professionally was asked if the insured was cured when he left his hands; if in his opinion insured was in good health, of sound body, and “ ‘ Excluding any knowledge or information that you [the physician] obtained while treating * * * [the insured], and judging from his appearance from that time until 1867, what is your opinion as to whether he was a man in good health, of sound body, and a man who usually enjoyed good health? ’ ” (77 N. Y. 564, 568, supra.) It is important to note that the physician had seen the insured frequently before he attended him professionally and saw him after he ceased to attend him. In his opinion, Judge Earl concluded that it was error to sustain the objections to the questions (1) since the trial court could not, from the evidence, determine whether the physician discovered the nature of the disease with which the insured • was afflicted while attending him professionally, and (2) since one of the questions in terms excluded all knowledge or information obtained while the physician was engaged in professionally treating the insured. After thus disposing of the issue, Judge Earl added this comment (p. 571): “It will not do to extend the rule of exclusion so far as to embarrass the administration of justice. It is not even all information which comes within the letter of the statute which is to be excluded. The exclusion is aimed at confidential communications of a patient to his physician, and also such information as a physician may acquire of secret ailments by an examination of the person of his patient. The policy of the statute is to enable a patient, without danger of exposure, to disclose to his physician all information necessary for his treatment. Its purpose is to invite confidence and to prevent a breach thereof. [Citing case.] Suppose a patient has a fever, or a fractured leg or skull, or is a raving maniac, and these ailments are obvious to all about him, may not the physician who is called to attend him testify to these matters? In doing so, there would be no *189breach of confidence, and the policy of the statute would not be invaded. These and other cases which might be supposed, while perhaps within the letter of the statute, would not be within the reason thereof.” (Emphasis supplied.)
So it was that Judge Earl propounded the view that the privilege should not prohibit a doctor from testifying at least as to those observations as to which a lay person might testify.
A new trial was ordered. Chief Judge Church, and Associate Judges Bapallo and Miller concurred “ in result on ground that rulings on questions of evidence referred to in opinion were erroneous; Folger, J., took no part; Daneorth, J., having been counsel took no part; Andrews, J., absent.” (Supra, p. 573.) What the members of this court intended by their concurrence in the result became clear in later cases.
Thus, in Grattan v. Metropolitan Life Ins. Co. (80 N. Y. 281), another action upon a life insurance policy, the insurer sought to show the falsity of representations in the application of the insured as to the cause of death of his mother. The insurer called a physician who testified that he attended her in her last illness; it did not appear that he ever visited or saw her at any other time or in any other than a professional capacity. The witness was then asked if he knew or was able to state the cause of her death; if he observed the symptoms were such as might have been discovered by observation and physical examination, without the aid of any specific statement from the patient, or without their being confidentially disclosed by her, or any friend or attendant, or through any private examination; and also if the statement of the insurer as to the cause of death was true. We held that such testimony was properly excluded, quoting the language of Edington v. Mutual Life Ins. Co. (67 N. Y. 185, supra) to the effect that the privilege extended even to observation of the patient’s appearance. In the course of his opinion, Judge Daneorth explained the reason for the concurrence in the result by three Judges in the Edington case (Edington v. Aetna Life Ins. Co., 77 N. Y. 564, 573, supra): “ the question addressed to the physician [in that case] was held proper by the learned judge [Earl] because, as is there stated, ‘ it does not appear that he discovered that disease or learned its nature while attending him (the life insured) professionally. He saw *190him frequently before he attended him, and saw him after he ceased to attend him, and the court could not say that he could not answer without disclosing the necessary information which he had obtained while in professional attendance upon him,’ ” (80 N. Y. 281, 299-300, supra.) All concurred in Judge Da$teorth’s opinion except Judge Earl, who concurred in all “ save as to the rejection of testimony of attending physician, and as to that dissents ” (p. 301).
Still later, the same question reached this court in Renihan v. Dennin (103 N. Y. 573), a will contest in which a physician who had been called in by the attending physician a short time before the testator’s death and the execution of the will was asked to describe the appearance and condition of the sick testator; to state whether in his judgment testator was dying and whether testator was in such a condition that he was capable of understanding and taking into account the nature and character of his property and of his relations by blood and marriage to those who were or might become the objects of his bounty, and make an intelligent disposition of his property by will. Objections to those questions were sustained on the ground that the witness was incompetent to testify as to those matters. Judge Barí, wrote the opinion for the court and all concurred. He declared (103 N. Y. 573, 579-580, supra): “ It is also claimed that the statute [establishing the privilege] should be so construed as only to prohibit the disclosures by a physician of any information of a confidential nature obtained by him from his patient while attending him in a professional capacity. Such was the view of the statute taken by me in my opinion in Edington v. Ætna Life Ins. Co. (77 N. Y. 564); but my brethren were then unwilling to concur with me in that view. When the same question again came before the court in Grattan v. Metropolitan Life Ins. Co. (80 N. Y. 281) I again attempted to enforce the same view upon my brethren, and again failed, and it was then distinctly held that the statute could not be confined to information of a confidential nature, and that the court was bound to follow and give effect to the plain language without interpolating the broad exception contended for,” (Emphasis supplied.)
*191He then felt impelled to point out to the Legislature that: “ It is probably true that the statute, as we feel obliged to construe it, will work considerable mischief. In testamentary cases where the contest relates to the competency of the testator, it will exclude evidence of physicians which is generally the most important and decisive. In actions upon policies of life insurance where the inquiry relates to the health and physical condition of the insured, it will exclude the most reliable and vital evidence which is absolutely needed for the ends of justice. But the remedy is with the legislature, and not with the courts." (103 N. Y. 573, 580, supra.)
That was in December of 1886. Judge Eabl had consistently retained his belief and position in three cases without success in the period in which volumes 77 to 103 (1879-1886) of our reports were published. Four and one-half years later, in May of 1891, the Legislature acted. An amendment was made to section 836 of the Code of Civil Procedure so as to provide for two types of waivers of the privilege. (L. 1891, ch. 381.) The amendment read: “ The last three sections [forbidding disclosure by a physician] 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. But a physician or surgeon may upon a trial or examination disclose any information as to the mental or physical condition of a patient who is deceased which he acquired in attending such patient professionally, except confidential communications and such facts as would tend to disgrace the memory of the patient, when the provisions of section eight hundred and thirty-four have been expressly waived on such trial or examination by the personal representatives of the deceased patient or if the validity of the last will and testament of such deceased patient is in question, by the executor or executors named in said will. ” (Emphasis supplied.) That language is now contained in section 354 of the Civil Practice Act. The power to waive has, however, under the Civil Practice Act, been granted to the surviving spouse, or any heir at law, or any of the next of kin of the deceased, or any other party in interest, which was not the case when the Legislature first enacted the waiver provision.
*192It will be noted that the section provides for a complete waiver by the patient. However, when the patient is deceased and the validity of the last will and testament is in question, only a limited waiver is possible. The physician may then dis-j close any information as to the mental or physical condition of the deceased patient which he acquired in attending the patient professionally “ except confidential communications and such facts as would tend to disgrace the memory of the patient
What did the Legislature intend by 1 ‘ confidential communications ”? That precise issue reached this court in Matter of Cashman (159 Misc. 881, affd. 250 App. Div. 871, affd. 280 N. Y. 681, supra).
Matter of Cashman, like the present case, was a will contest. The objectant claimed that the testatrix did not possess testamentary capacity. Testatrix’ doctor was asked:
“ Q. At that time in 1932, what did you find in connection with her condition?
“ Q. Doctor, based upon your experience and observation of her and your treatment of her at the times you have stated, in your opinion on March 6, 1935, being the date the alleged will and testament is claimed to have been executed by her, was she of sound and disposing mind and memory ’ ’ ?
Both of those questions were objected to upon the ground of the physician-patient relationship. The objections were sustained, and the will admitted to probate.
The sole issue presented to this court, then composed of Chief Judge Crane and Associate Judges Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, was the propriety of the rulings on the objections to the questions quoted.
The history of the cases and of the waiver statute was traced, although we wrote no opinion. It was noted that Judge Earl had expressed the view that the privilege should exclude only “ disclosures by a physician of any information of a confidential nature obtained by him from his patient while attending him in a professional capacity.” (103 N. Y. 573, 579, supra.) It was concluded that the provision for waiver was doubtless added to the statute in accordance with this suggestion of Judge Earl. That left the question: “ When is such information ‘ of a confidential nature ’? ” Our court decided that a communication to a doctor *193is “ confidential ” when it is information acquired by the doctor as a result of confidence reposed in him as such by the patient. That is, our court determined that the Legislature intended to adopt the suggestion of Judge Earl in the Edington, Grattan and Renihan cases ()supra) viz., that physicians be permitted to testify in such cases, in event of waiver to such matters as they could have noticed and described as laymen. We held that the limited waiver was no broader than that. Our court considered that it would be proper to ask the physician: “ Excluding from your consideration any confidential matter and any secret ailment discovered by you, and confining yourself to matters that were obvious to any observer, was the testator in your opinion of sound mind ”? etc.
That case was decided in 1939 — fifteen years ago. It has never been overruled or limited and is the controlling precedent. The fact that the court did not set down its views in an opinion does not, of course, lessen the force of the case as binding precedent. In interpreting the limited waiver provision of section 354 of the Civil Practice Act, our court in the Cashman case had before it the statement by the Surrogate (159 Misc. 881, 886, supra): “ While it may not be against public policy to permit the patient himself to waive this privilege without limitation, nevertheless, reason dictates that after one’s death his memory should be protected even as against his executor, heirs, etc.” (Emphasis supplied.) That is true. The decedent is concerned during his life that his personal dignity be preserved even after his death. If the court erred in interpreting the legislative intent, or if a different policy is to be declared or a change made, the Legislature must so ordain.
In the present case Dr. Olivet was asked whether in the treatment of testatrix he observed any mental changes. He was also asked to describe her mental and physical condition at a time that he was attending her. It is true that he was not asked in so many words what he ‘1 found ’ ’ in connection with testatrix’ mental capacity or what opinion he formed of the testatrix’ mental and physical condition “ based ” on his treatment of her, as was the physician in the Gashman case, supra, but it is evident that he, like the physician in the Cashman case, was being asked to divulge what he knew of the testatrix’ mental and physical *194condition based on information acquired by him as the result of confidence reposed in him by Eva Coddington. That is apparently why proponent’s counsel, who was also proponent’s counsel in the Cashmcm case, objected to the questions with which we are concerned, but made no objection when counsel for contestant asked Dr. Olivet:
“ Q. Doctor, I want you to disregard any information or observations that you may have acquired concerning Eva Coddington up to April, 1949, when Mary [Eva’s sister] died, and base the answer to the questions I am going to ask you entirely Upon your observations and conversations had with Eva Coddington, outside of your professional calls with respect to her, and I ask you, bearing in mind what was the mental condition of Eva Coddington at about the time of the death of her sister, Mary, in April, 1949. A. I had several conversations with Eva Coddington on a non-professional basis up to the time of Mary’s death?
‘ ‘ Q, That is correct, A. On a non-professional basis, in those conversations I felt that Eva was incompetent, irrational and had no sense of value or appreciation of her relatives, and even her sister, at the time of her death.
“Q. Will you say that the mental condition which you have described earlier in your testimony as to her conduct in April, 1949, was at least the same, if not worse on February 13, 1951? Aí I would feel it would have to be worse.”
In our opinion the rule of the Cashman case (supra) applies and the Surrogate did not err in sustaining the objections to certain questions addressed to Dr, Olivet.
With respect to (3): The records of the Hudson Eiver State Hospital were produced before the Surrogate pursuant to an order of that court made under the authority of section 20 aild subdivision 9 of section 34 of the Mental Hygiene Law, Contestant’s counsel, under the authority of that order, had inspected the records. When contestant’s counsel sought to introduce them into evidence on the trial, the hospital’s own representative objected to their admission. Counsel for proponent also objected to their admission upon the grounds (1) that they contained confidential and privileged communications, and (2) that they were hearsay, no opportunity having *195been afforded the proponent to cross-examine those who made the records. The court sustained the objections on both grounds.
In our opinion the second ground upon which proponent objected is without merit but the first ground is well founded. Section 374-a of the Civil Practice Act, providing for the admission into evidence of records made in the regular course of business, was enacted to overcome the objection that such records were hearsay and we have held that hospital records are included within the records to which section 374-a is applicable (People v. Kohlmeyer, 284 N. Y. 366, 370). But we were careful to say, in that case, that they are admissible, <£ no question as to privilege being presented ” (p. 369).
The hospital records here involved were made by physicians who treated testatrix and contained statements as to the observations of those physicians as to the condition and the treatment of the testatrix and also as to the conclusions of doctors with reference to the disorder of testatrix. Undoubtedly, parts of the hospital records were the result of ££ confidential communications ” and, therefore, the doctors could not have testified to such matters had they been called to the stand. We perceive no valid reason why the rule should be different merely because the objectionable matter has been reduced to writing. The purpose of section 374-a of the 'Civil Practice Act was to overcome the objection of the hearsay rule, not to destroy or weaken the privilege existing between physician and patient.
The order of the Appellate Division should be affirmed, with costs to both parties, payable out of the estate.