I dissent and vote to affirm. Section 352 of the Civil Practice Act provides in part that “ A person duly authorized to practice physic or surgery * * * shall not be allowed to disclose any information which he required in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity ”. The preliminary cross-examination of Dr. Wechter extends over some 45 pages of the printed record. While isolated portions may be extracted to sustain a contrary viewpoint, I conclude upon a complete reading of the preliminary cross-examination that the information obtained by the physician from the defendant did not fall within the statutory provision and was properly received in evidence by the trial court.
*598In this lone dissent it would serve no useful purpose to do more than set forth briefly my views upon the applicable law. A study of the authorities in this State, it seems to me, discloses a clear line of demarcation between information obtained by a physician not necessary to enable him to act and information required by the doctor to treat the patient. The distinction is well stated in Edington v. Ætna Life Ins. Co. (77 N. Y. 564, 569-570) where it was said that “ Before information can be excluded under this statute, it must appear that it was such as the physician acquired in some way while professionally attending a patient; and it must also be such as was necessary to enable him to prescribe as a physician, or to do some act as a surgeon. It is not sufficient to authorize the exclusion that the physician acquired the information while attending his patient; but it must be the necessary information mentioned. If the physician has acquired any information which was not necessary to enable him to prescribe, or to act as a surgeon, such information he can be compelled to disclose, although he acquired it while attending the patient; and before the exclusion is authorized, the facts must in some way appear upon which such exclusion can be justified.”
See, also, Griffiths v. Metropolitan St. Ry. Co. (171 N. Y. 106, 111); People v. Sliney (137 N. Y. 570, 580); Wigmore on Evidence (Vol. 8 [3d ed.], § 2381) and cases therein cited. On the other hand, People v. Murphy (101 N. Y. 126) and People v. Stout (3 Parker Cr. Rep. 670) represent the classic case where there was proof that the physician did treat or prescribe for the defendant or witness and the relationship within the meaning of the statutory provision was held to have been established. The rule is conversely stated in People v. Austin (199 N. Y. 446, 452) in the following language: “It is clear from the statute itself and from the authorities that if the physician never attended the defendant in a professional capacity and never obtained information from him to enable him to prescribe in such professional capacity, he can testify the same as any other person. In such a case the seal of confidence existing by virtue of the statute between physician and patient and made necessary to obtain the fullest information in no way applies.”
The majority opinion recognizes the rule that the burden of establishing the confidential relationship is on the defendant. If, as appears, “ The fact of treatment is the decisive test in this case ” (Meyer v. Knights of Pythias, 178 N. Y. 63, 68) we turn to the record to ascertain how the defendant sustained this burden. Quite aside from the ipse dixit, of Dr. Wechter upon the subject we find nothing in the record concerning treatment *599of the defendant while he was in the hospital except the fact that a technician took an electroencephalogram which was interpreted by a Dr. Link and that laboratory work was done. The defendant did not testify and rested following the close of the People’s case. Absent any other proof from the defendant it would seem that if he seriously contended that the information given to Dr. Wechter was used to treat or prescribe for him that the best evidence would have been the hospital records. Yet when these were offered by the People the defendant asserted that they were privileged and successfully kept them out of evidence.
In this posture of the case it is difficult for me to see how the defendant sustained the burden of proving that the information obtained by the doctor was (1) required in attending a patient in a professional capacity and (2) that it was necessary to enable Dr. Wechter or any other doctor to treat the defendant. There is no evidence as to whether the defendant during the three days in the hospital was treated for injuries received in the accident or for Jacksonian epilepsy. If treated solely for injuries received in the accident there is no showing that the history obtained relating to prior seizures was “ information which he [or any other physician] required in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity ’ ’.
The judgment of conviction should be affirmed.
All concur, except Bastow, J., who dissents and votes for affirmance in a separate opinion.
Present — McCurn, P. J., Kimball, Wheeler, Williams and Bastow, JJ.
Judgment of conviction reversed on the law and a new trial granted.