The relation of physician and patient is one of contract between the parties, the patient employing the physician to examine the patient’s condition, and if necessary to administer remedies.
It has been classed among the confidential, relations, such as that of trustee and cestui que trust and the like. Of course it is not necessary that there should be any administering of remedies. Medicus cptimus, medicamentu/m minimum. But there must bean employment of the physician by the patient, except as hereinafter stated. Thus in People v. Murphy (101 N. Y., 126), where the physician was selected by the public prosecutor and sent to-attend upon the person, it was held that the relation of physician and patient was established, because that person accepted his services,, and he rendered them in that character There was, therefore,, practically, an employment of the physician by the person who was held to have become his patient, although his compensation did not come from her. So, too, in the case of an infant, though the-employment is made by the parent, and the infant be even incapable-of acting, the relation of physician and patient is established.
The case might also be suggested of one who was unconscious and for whom friends employed a physician. No doubt, in such a case, the-relation of physician and patient would be established, although the patient was unable to act for himself and others had acted for him. But nothing of that kind existed in this case. The deceased was conscious and capable of acting. She did not accept the services of these physicians, and they were not employed to attend her in a professional capacity. The information which a physician is forbidden to disclose is that which he has acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity. (Code Civ. Pro., § 834.) Attendance on a patient means more than being in the same room; and acting in a professional capacity means acting in reference to that patient. A physician by merely being in the company of a person and observing his appearance, might be satisfied that the person was ill with *462some disease, for instance, consumption, but this section would not forbid the disclosure of that opinion.
In Grattan v. Insurance Company (24 Hun, 43; S. C., 92 N. Y., 274); Renihan v. Dennin (103 id., 573), there could be no doubt that the physician was called to attend the patient professionally, and that the relation of physician and patient existed. But in the present case the physicians were not called to prescribe for the deceased or to advise as to professional treatment; nor did they so prescribe or advise. If the deceased, at the time of their visit, had been in great need of good medical advice, and they had given no advice; they would not have been chargeable with malpractice or neglect of •duty; because they were not under any obligation to advise or to prescribe. Any advice or prescription would have been an improper ■act, because they were not the attending or consulting physicians, .and they were under no obligation to her. If they had conversed with her as to her health, then, possibly, she might have conceived the idea that they were consulting physicians. And if, in such mistaken belief, she had stated anything as to her health, very possibly that might have come within the prohibition of this section. But there is nothing of that kind. There is no reason to believe that she thought' them to be consulting physicians, or recognized them to be anything more than proper witnesses to her will.
The section implies that the physician is to do some act in his professional capacity. Of course, this act may be merely negative, that is, the physician may decide that no medicine is needed. But in this case these physicians were not to do, or to omit to do, any-, thing for the deceased. The signing of the will as witnesses was not a professional act. I think there was no error in allowing these physicians to testify.
Another objection is that proof was not given of the age of the •deceased. The surrogate finds that she was of full age. There .appears to be no proof on that point. Probably it was assumed as a matter not disputed. No objection was taken by the contestants on this point. One ground of objection was that the proponents had not shown that the testatrix was of the class of persons capable of executing a will. But this did not point out the specific defect in the proof. If it was intended to be an objection on the ground that the age of the testatrix had not been proved, then it was expressed *463in such a manner as to conceal its meaning. One object in requiring parties to take objections is to give tlie oilier side notice of the alleged defect. No sncli notice was here given. The petition for probate is not before us. That may have stated the age of the testatrix. The contesting allegation of the husband and heirs and next of kin set up no such matter.
If there be any defect in this respect, then this is a case where we should take the proof or refer the matter under section 2586.
LaNdoN, J.:I advise affirmance, upon the ground that the testatrix expressly requested these physicians to be subscribing witnesses. She thereby, in legal effect, expressly requested them to do two things, first, to sign their names to her will as witnesses to this execution and publication ; second, to testify, at the proper time before the proper court, to the whole truth within their knowledge touching the matters material to be inquired of in order to establish the probate of the will.
Having expressly requested them to give this testimony, she expressly waived her privilege, if she had any, to prevent their giving it.