(dissenting). The probate of a will is contested upon the ground that testatrix was mentally incompetent at the time of its execution. Although her attending physician was evidently prepared to testify that she was incompetent to make a will, and to do so on the basis of a diagnosis that she suffered from arteriosclerosis in an advanced stage, his testimony was excluded upon the ground that it would have involved the disclosure of a privileged communication contrary to section 352 of the Civil Practice Act. This ruling was made notwithstanding that there had been a waiver of the privilege to the full *196extent authorized by section 354. The latter section permits such waiver if the validity of the last will and testament of the doctor’s deceased patient is in question, and allows the physician to “ 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 ”, Arteriosclerosis tends in no manner to disgrace the memory of a decedent, and the rulings excluding the professional opinion of this physician must have been made upon the theory that permitting him to testify would have disclosed a confidential communication. In considering that question of law, attention is directed to the questions which were asked of testatrix’ attending physician, which he was not allowed to answer.
Without objection, this doctor testified that he treated testatrix for a condition known as generalized arteriosclerosis from 1943 until July, 1951, when she entered the State hospital. The will propounded for probate was executed February 13, 1951. Although this doctor testified without objection that this meant general hardening of the blood vessels including degenerative changes in the brain area, which manifests itself in action, movement and speech, as well as in the thought of an individual, objection was sustained to the following questions:
“ 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?”
The last question related to an occasion when this physician saw the patient in January, 1951, less than one month before she made this will.
Inasmuch as it was found that testatrix was competent to make a will, and this will has been admitted to probate, it is manifest that this testimony by her own attending physician was of the utmost importance upon the question directly at issue, and that its exclusion was reversible error unless these rulings were legally correct.
*197As has been indicated, these questions confined the witness to testimony in connection with testatrix’ condition of arteriosclerosis. This is unlike the controlling question addressed to the expert witness in Matter of Cashman (159 Misc. 881, affd. 250 App. Div. 871, affd. 280 N. Y. 681) inquiring “ what did you find in connection with her condition? ”, where it was possible that the witness in answering might have expressed a diagnosis of a mental condition induced, for example, by venereal disease or habitual intoxication, which would have been properly excluded for the reason that it might tend to disgrace the memory of the decedent.* No opinion was written by the appellate courts in the Cashman case.
The only ground, as above stated, on which the exclusion of the instant testimony can be upheld, is that any professional opinion concerning the condition of a patient must necessarily involve the disclosure of a confidential communication such as is prohibited by section 354 of the Civil Practice Act. The effect of affirming this decree is thus to hold that it is impossible to waive the privilege between physician and patient where the latter is deceased, beyond permitting the physician to testify to observations which he has made while attending the patient in a professional capacity which could have been understood and described by the ordinary layman. The result is that waiver of the privilege conferred by section 352 of the Civil Practice Act by a personal representative or survivor of a deceased patient, has no effect except to permit the attending physician to testify to items concerning the appearance, conversation and behavior of the patient which he would have been capable of noticing without being equipped "with any special training or knowledge, and that he would have been competent to describe upon the witness stand if he were not a doctor of medicine. This is a construction of sections 352 and 354 of the Civil Practice Act which is narrower than seems to me to be required by the use of the words “ confidential communications ” in section 354, and which is not likely to promote the ends of justice. Prior to the enactment of any statute permitting waiver in the case of deceased persons, this court considered itself reluctantly *198required to rule out medical testimony in all such instances (Renihan v. Dennin, 103 N. Y. 573). At the end of the opinion per Earl, J., concurred in by a unanimous court, it was said: 1 ‘ 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.” (P. 580.)
Notwithstanding that the Renihan case (supra) is generally regarded as having resulted in the enactment of what is now section 354 of the Civil Practice Act, the decision in the pending case reverts, as it seems to me, in major part to the situation which existed before the waiver provision in the case of decedents was enacted by the Legislature.
The reasoning underlying this restricted construction of section 354 derives from the use of the words “ disclosures by a physician of any information of a confidential nature obtained by him from his patient while attending him in a professional capacity ”, as they are employed in the opinions in the Renihan ease (supra) and in several earlier decisions. The majority opinion reasons that these words thus became words of art, synonymous with anything which the doctor learned that was necessary in order to enable him to treat the patient. “ Confidential communications ” are, of course, words of a general nature, not easily definable. It would have been desirable, perhaps, if the Legislature had adopted language of greater precision in limiting the scope of the waiver permitted by section 354, It is reasoned that, in adopting section 354, the Legislature did not go the full length of the recommendation which was made by the last paragraph in the Renihan opinion, which was quoted above, that pointed out that the opinion evidence of physicians is generally important and may well be decisive in will contests and life insurance actions where the inquiry relates to the health *199and physical condition of the decedent. It is said that the Legislature went only so far as to carry out the limitation of the privilege which was put forward by Judge Earl in the Edington and Grattan cases (Edington v. Ætna Life Ins. Co., 77 N. Y. 564; Grattan v. Metropolitan Life Ins. Co., 80 N. Y. 281), before the waiver section had been enacted in any form. The conclusion of that reasoning is that the Legislature declined to permit the expert opinion evidence of physicians to be introduced concerning their deceased patients under any circumstances, merely permitting them to testify in event of waiver to such matters as they could have noticed and described as laymen. That is much more limited than the extent which this court unanimously found to be desirable in Renihan v. Dennin (supra), but marks the limit of the liberality which was unsuccessfully contendéd for by Judge Earl prior to the enactment of any statute permitting waiver in the case of deceased patients.
Whatever may have been the operation of the minds of the draftsmen with the Renihan opinion before them, it seems to me that section 354 of the Civil Practice Act (and Code Civ. Pro., § 836, from which it was derived), has been more broadly interpreted than this by Bench and Bar since the original enactment thereof by chapter 381 of the Laws of 1891, and that the Legislature must be deemed to have ratified and sanctioned the practical construction which has been placed upon it by failure to amend in this respect during the intervening years. If the practical construction of a statute is well known, the Legislature is charged with knowledge of it and its failure to interfere indicates acquiescence therein (People v. Charbineau, 115 N. Y. 433; Matter of Maxson Corp. v. Ralph, 182 Misc. 144, affd. 268 App. Div. 753, affd. 294 N. Y. 880; Faingnaert v. Moss, 295 N. Y. 18).
Concerning what has been the traditional interpretation of the waiver section, the profession would, I think, receive with considerable surprise a holding that the waiver of the privilege of a deceased patient signifies nothing more than that the attending physician shall be permitted to testify merely to what he could have testified if he were not a doctor. Indeed, this means that he cannot testify as freely as a layman, in view of the *200limitation that no facts shall be admitted which would tend to disgrace the memory of the patient. That is a restriction which does not apply to laymen.
This restriction would appear to have been inserted unnecessarily into section 354, if, even without it, the attending physician is still prohibited from giving any expert opinion evidence. It might be thought that this would effectively prevent him from disclosing anything involved in the patient’s condition which would tend to disgrace the memory, without the need for the additional words to that effect.
The decisions under section 354 of the Civil Practice Act and section 836 of the Code of Civil Procedure scarcely support the narrow interpretation now being placed upon it. In Holcomb v. Harris (166 N. Y. 257) the judgment was reversed due to the exclusion of expert testimony of the former physician of a decedent. In that instance, the waiver was by the personal representatives of the deceased patient. Concerning calling the physician as a witness, the court said (p. 263): “ It is difficult to imagine a clearer act of waiver than for the legal representatives of a deceased patient to call his former physician to the stand and ask him to disclose professional information falling within the provisions of section 834 of the Code. It is apparent that neither court nor counsel was misled in this situation. The rejected evidence was material, and, while regretting the necessity for a new trial, we are compelled to hold that this ruling of the trial judge presents reversible error.”
The testimony excluded consisted in a statement by the physician of “ testator’s physical condition at that time.” There is no suggestion in the opinion that merely lay testimony by the physician would be admissible, but, on the contrary, it is described in the opinion (p. 262) as being “ necessary information acquired in attending a patient professionally ”. The Holcomb case (supra) was decided in 1901, and there would appear to have been ample opportunity for the Legislature to have restricted the scope of the waiver section if it had thought that the case was improperly decided. In Murray v. Physical Culture Hotel (258 App. Div. 334) decided in 1939, it was pointed out that “ it is often as much in the interest of the patient to reveal what an examination by his physician discloses as it is to conceal it. ’ ’ *201(P. 337.) The court further stated: “In this instance the waiver which the plaintiff attempts to elicit is not to be made by the patient but by his administrator as a witness. The power of an administrator to waive is prescribed by section 354 and is not so broad as that of the patient would have been if living, inasmuch as the administrator is precluded in any event from permitting the disclosure of confidential communications or of such facts as would tend to disgrace the memory of the decedent. The testimony which the plaintiff is attempting to bring out that Mr. Thomas suffered from tuberculosis for some time before he died is not a confidential communication and has no tendency to disgrace his memory. It is, therefore, within the power of his administrator under section 354 to grant the waiver. There is no doubt that Mr. Thomas would have been competent to waive it himself, if living, and the circumstances of the case bring it within the statute in so far as it confers an identical power upon his administrator.” (P. 338.)
It was further pointed out that, even where the deceased patient’s estate is not suing, “ the administrator may think that it is in the interest of his decedent that the true facts concerning his health and death shall be made public if there is going to be a trial, rather than to have the disease which afflicted him left in doubt and ambiguity with possible inferences drawn which might reflect upon his reputation.” (P. 338.)
In the Murray case (supra), plaintiff’s fellow patient in a sanitarium had died, from whom it was contended that plaintiff had contracted tuberculosis due to negligence of the institution. A necessary link in plaintiff’s chain of proof was to establish that this man, from whom Murray claimed to have caught tuberculosis, was suffering from that disease at the time when Murray was placed in the same room with him at the sanitarium. Under the ruling about to be made herein, not only ought the attending physician for the deceased fellow patient to have been precluded from expressing an opinion in the Murray case that his patient suffered from tuberculosis when Murray roomed with him, but, if the plaintiff in that case (Murray) had died, his estate might have been prevented from recovering for the further reason that it could not have been established that he died from tuberculosis. It would have been beyond the power of *202Ms personal representatives to have waived the privilege precluding the introduction of any expert testimony of Murray’s physician concerning the cause of death of the person whose estate would have been bringing the action. The effect of this ruling should be borne in mind where it is necessary in workmen’s compensation cases for the clamant to establish by the attending physician that his examinations of a deceased patient revealed that he had contracted an occupational disease, or where it is necessary in wrongful death actions to establish that death resulted from a disease or morbid condition which was diagnosed and treated by an attending physician.
In Matter of Cleveland (273 App. Div. 623, 625) in an opinion by Foster, J., now Presiding Justice, it was said:
“Respondents also rely heavily on the Matter of Cashman (159 Misc. 881, affd. 250 App. Div. 871, affd. 280 N. Y. 681). In that case, however, the decision of the court was based on the ground that the questions propounded were too broad and might include matter barred by the statute.
“ Under the language of the statute the waiver does not extend to confidential communications, and due to the looseness with wMch both the Bench and Bar have used these terms in the past there may be some difficulty in construing these terms as used in the statute. It has long been held that the proMbition against disclosure of information by a physician embraces all information necessary to treat the patient whether acquired from examination, observation or statements made by the patient (Edington v. Mutual Life Insurance Co., 67 N. Y. 185; Grattan v. Metropolitan Life Insurance Co., 92 N. Y. 274), and all of these matters have been frequently lumped together as confidential communications. Obviously it is necessary to give these terms a narrower construction when a waiver as permitted by statute is sought to be applied, otherwise the statute would be meaningless. We do not undertake to determine in advance what would amount to a confidential communication in each and every case, but where a waiver has been properly made by a proper party the physician called should be permitted to testify as to the physical and mental condition of the patient (Holcomb v. Harris, 166 N. Y. 257).”
*203Numerous decisions have been made in the trial courts permitting the introduction of expert opinion evidence by attending physicians of deceased patients in case of waiver under section 354, such as Stiles v. Clifton Springs Sanitarium Co. (74 F. Supp. 907, 908) (applying the New York State law); Waldron v. State of New York (193 Misc. 113, 114-115); Matter of Ericson (200 Misc. 1005, 1009). (See, also, 8 Wigmore on Evidence, pp. 802, 815, 823; [1953 Supp.], p. 259; 2 Jessup-Redfield, Surrogates’ Law and Practice, pp. 420-421.)
The general rule is that the burden of showing that evidence is privileged rests on the party seeking to exclude it (Griffiths v. Metropolitan St. Ry. Co., 171 N. Y. 106, 111).
The natural interpretation of the limitations upon the extent of the waiver authorized by section 354 in the case of a decedent, would appear to be that an attending physician is prohibited from disclosing such facts discerned by him through his special training as a physician or otherwise as would tend to disgrace the memory of the patient, and to preclude him from testifying to intimacies communicated to a doctor by a patient which were manifestly not intended for repetition under any circumstances. It seems to me that that is the manner in which the language of section 354 would be understood by the ordinary person, and (although there is an absence of precise formulations of the meaning) that is the manner in which it has generally been construed by the courts.
By omitting to amend section 354, after interpretations over many years that in case of waiver an attending physician may disclose at least some facts or opinions concerning the physical or mental condition of a decedent which he is qualified to state only by his professional training as a physician, it seems to me that under the decisions above cited the Legislature should be deemed to have adopted a broader construction of the section than the one now placed upon it. It is not difficult to come to that conclusion, even if the case of Renihan v. Dennin (103 N. Y. 573, 579, supra) be regarded as the decision which prompted the enactment of the predecessor section to 354 of the Civil Practice Act. It is a familiar canon of construction that the evil which existed calling for the new enactment is one of the factors to *204be considered in its interpretation (People ex rel. Jackson v. Potter, 47 N. Y. 375, 379). This idea has often been expressed by saying that the courts consider “ the mischiefs it was designed to remedy ” (Ayers v. Lawrence, 59 N. Y. 192, 195). If Renihan v. Dennin prompted the enactment of the waiver section, the last paragraph in the opinion (p. 580) should be considered in which the court expressly pointed out the defectiveness of the previous law, saying: “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.” This language certainly did not mean that in testifying physicians should lay aside the knowledge and experience which they have acquired as physicians, hut rather that they should use it in describing to the court and jury their diagnosis of the condition of the patient. In enacting the waiver section, it may be thought that the intention of the Legislature was to render this possible.
The decree appealed from should he reversed and a new trial granted, with costs to abide the event.
Lewis, Ch. J;, Desmond, Dye, Fuld and Froessel, JJ., concur with Conway, J.; Van Voorhis, J., dissents in opinion.
Order affirmed.
(It is, of course, not meant to imply that the testatrix Gashman did suffer from those ailments).