(dissenting). The basic question before us on this appeal is the validity of subdivision (c) of section 33 of the Sanitary Code of the City of New York, upon which respondent relies for its refusal to obey the subpoena duces tecum issued herein. As now written, this section, with respect to the so-called “ confidential medical report ”,
i. creates a new " confidential and privileged communication ",
ii. renders it immune from subpoena, and;
iii. thus creates, by virtue of its unavailability, a new rule of evidence by rendering it inadmissible in any action or proceeding, however material or competent it may be;
*29iv. forbids inspection “ for any reason whatsoever, other than for scientific purposes approved by the [New York City] Board of Health ”, but
v. allows “ access ” thereto by authorized funeral directors (subd. [f]); and
vi. is, of course, limited in its operation to the City of New York only.
It was not a part of the existing Sanitary Code on January 1, 1938, when said code was continued by the Legislature and given the force and effect of law (New York City Charter, § 558, subd. a). It was thereafter adopted by the board of health on December 12,1938, in place of former section 33, purportedly pursuant to subdivision b of section 558 of said charter, which empowered said board
(1) “ to add to and to alter, amend or repeal any part of the sanitary code ”;
(2) to “ publish additional provisions for the security of life and health in the city ”, and
(3) to “ confer additional powers on the department not inconsistent with the constitution or laws of this state or with this charter ”.
Its validity must therefore rest upon the board’s power under this statute.
I agree with the majority that the section under consideration was meant to be a bar to any juridical evidentiary use “ of a confidential medical report ” filed in accordance with the requirements, but deny the power of the board to enact such provision under the statutory authorization granted in subdivision b of section 558.
(1) That the board was not authorized “ to add to and to alter, amend or repeal any part of the sanitary code ” in any manner it pleased requires no citation of authority; the Legislature may not be deemed to have granted the board such unlimited and plenary power, and, without a guide or standard, it would be invalid (Matter of Levine v. O’Connell, 300 N. Y. 658; Packer Collegiate Inst. v. University of State of N. Y., 298 N. Y. 184, 190).
(2) Authority to ‘ ‘ publish additional provisions for the security of life and health in the city ” furnishes such a guide or *30standard. The question, then, naturally presents itself: does the challenged enactment provide ‘‘ for the security of life and health ”? The corporation counsel in his brief states: “ It is obvious that the Board of Health adopted new § 33 because it was of the opinion that disclosure in a death certificate of the .cause of death would in many instances bring shame or discredit on the deceased and on those who survived him without in any way serving the public interest.” This appears to be its real purpose, for what scientific purposes are served by secreting statistics? How are life and health secured by this provision? As we said in Thomas v. Morris (286 N. Y. 266, 269), “ Hidden in the files of the health office, it serves no public purpose except a bare statistical one.”
There is no counterpart to this provision in the law obtaining throughout the State. On the contrary, verified copies of death certificates containing the cause of death are issued upon request, subject to regulations by the State Commissioner of Health throughout the State, outside the city of Hew York (Public Health Law, §§ 377, 389, 391). Prior to the amendment of section 33, such certificates were for many years likewise procurable from the Hew York City Board of Health upon payment of a nominal fee. In Thomas v. Morris (supra), an action to recover damages for the death of plaintiff’s intestate, we held that certain records with respect to a communicable disease, kept by the Suffolk County Commissioner of Health in the course of his official duties, may be made available to plaintiff through a subpoena duces tecum; that no privilege attaches to these records, and that the public policy of the State as expressed in the Public Health Law and the State Sanitary Code confers no such privilege ; that such privilege does not exist unless conferred by some statute. We have no statute here empowering the board of health to confer such privilege.
There are no special local conditions surrounding the cause of death of residents in the city of Hew York any different from those in the rest of the State; scandal, shame and discredit affect all people alike; and there is no reasonable basis for the inflexible regulation so far as the security of life and health are concerned. It is quite different when the board of health adopts reasonable regulations with respect to the control of local epi*31demies, or in many other situations peculiarly affecting the life and health of the people of the city of Hew York, such, by way ’ of illustration, as protecting the purity of New York City’s milk supply (Matter of Stracquadanio v. Department of Health, 285 N. Y. 93); but even in that case they “ must be based upon special conditions existing in the city ” (Matter of Kress & Co. v. Department of Health, 283 N. Y. 55, 59). If it is contended that inspection must be denied to insure the accuracy of these reports, the answer is that we may not assume that physicians will file untrue medical reports in any event; but certainly there can be no doubt that reasonable safeguards permitting limited inspection would produce reports as accurate as those barring all Juridical inquiry. The enactment here, with its complete bar to inspection for any purpose whatsoever (except scientific purposes), is so unyielding that not even the commissioner of health is permitted to allow inspection; it has no real relation to the security of life and health in the city, and “ serves no public purpose except a bare statistical one.”
(3) Subdivision (c) of section 33 is obviously inconsistent with the general laws and public policy of the State. Its inconsistency with the Public Health Law of the State has already been indicated. While the case before us deals especially with a subpoena issued in a workmen’s compensation proceeding and on behalf of a carrier, it may in another case be desired by the widow or parent of a workman, or by the defendant in a criminal proceeding, in which liberty or life may be involved. The provision assumes to exercise a most sweeping power, and purports to render the records in question immune generally from subpoena, thus limiting the power not only of State agencies, such as the Workmen’s Compensation Board (Workmen’s Compensation Law, §§ 49-a, 118, 119, 142, subd. 3), but also of the courts themselves (Civ. Prac. Act, §§ 63, 403-414) and grand Juries (Code Crim. Pro., §§ 252, 261). Certainly it cannot be claimed that subpoenas will unduly interfere with the board’s custody or its use of the records for scientific purposes, for our Civil Practice Act and the Rules of Civil Practice already contain definite provisions in the way of safeguards for subpoenas duces tecum served upon “ a department or bureau of any municipal corporation ” by *32the substitution of copies for original records (Civ. Prac. Act, § 412; Rules Civ. Prac., rule 162).
The provision in question establishes a new class of confidential communications with respect to New York City deaths, not found in the Civil Practice Act nor in other statutes enacted by the State Legislature. The section may not be upheld on the ground that it is designed to supplement the existing statutory privilege applying to the physician-patient relationship (Civ. Prac. Act, § 352) since that privilege may be waived, and is waived in a proceeding such as the instant one (Matter of Maryland Cas. Co. [City of New York], 274 App. Div. 211; see 8 Wigmore on Evidence [3d ed.], § 2377, subds. [e], [d], pp. 778-779).
Moreover, by making the report unavailable, the section creates a new rule of evidence contrary to the evidentiary rule prevailing throughout the State generally by rendering inadmissible confidential medical reports arising out of New York City deaths in any action or proceeding, no matter how vital, competent and material that evidence may be, even in a case where, as here, the decedent’s relatives assert a claim based on cause of death.
The power to limit our courts, grand juries, and all government agencies should not be implied. In People v. County of Westchester (282 N. Y. 224, 232) and Matter of Kress & Co. v. Department of Health (supra, p. 60), we quoted with approval from Presiding Justice Lazansky’s opinion in Jewish Consumptives’ Relief Soc. v. Town of Woodbury (230 App. Div. 228, 234, affd. 256 N. Y. 619), as follows: “ The authority of a municipality to abrogate State law is never implied or inferred. It is only derived from express grant, never from a general grant of power. A State policy may not be ignored by a municipality unless it is specifically empowered so to do in terms clear and explicit.” (See, also, 2 Dillon on Municipal Corporations [5th ed.], § 601; Mills v. Sweeney, 219 N. Y. 213, 219.) No such express grant of power will be found in subdivision b of section 558 of the New York City Charter.
The aim of the section under review is, of course, well-intentioned, but in my opinion it is not consistent with the laws of this State nor with its public policy. There is a vast differ*33ence between denying inspection to those not having a legitimate interest in the record, on the one hand, and barring inspection, without any qualification whatsoever, on the other. The purpose of the board could well be achieved validly with reasonable and proper safeguards to prevent indiscriminate inspection but allowing inspection under proper supervision. An illustration of this procedure is found in section 20 of the Mental Hygiene Law. It requires the Department of Mental Hygiene to keep in its office certain records, “ accessible only to the commissioner, medical director and such other officers and subordinates of the department as the commissioner may designate, except by the consent of the commissioner or an order of a judge of a court of record ”. (Emphasis supplied.) Similarly, subdivision 9 of section 34 requires the director of each State institution to make a record which “ shall be accessible only to the director and such officers and subordinates of the institution as he may designate and to the commissioner and his representatives, except on the consent of the commissioner or an order of a judge of a court of record.” (Emphasis supplied.) These records are probably just as embarrassing to the relatives of the inmate as the confidential death report would be to the relatives of a decedent. Yet, it is significant to note that the Legislature has made them available in proper cases upon a court order.
The prevailing opinion properly disposes of the limited constitutional objection raised here, and, since no other has been presented here or below, we may not now consider any other (Matter of O’Neill v. Board of Regents of Univ. of State of N. Y., 298 N. Y. 777). However, I am constrained to conclude that subdivision b of section 558 of the Hew York City Charter did not authorize and empower the board of health to enact subdivision (c) of section 33 of the Sanitary Code in its present form, for the reason that said section does not provide “ for the security of life and health that it is inconsistent with the laws of this State and its public policy; and that it constitutes an unwarranted and invalid interference with the right to the production of documents, as permitted not only at common law but by our many related State statutes as well.
*34The order should he reversed and the motion remitted to Special Term for further proceedings not inconsistent with this opinion.
Lewis, Desmond, Dye and Fuld, JJ., concur with Loughran, Ch. J.; Froessel, J., dissents in opinion in which Conway, J., concurs.
Order affirmed.