Enright v. Brooklyn Heights Railroad

This is an application to take the testimony of Dr. Peter A. E. Boetzkes, a physician, upon commission. The action is to recover damages for injuries claimed to have been .sustained .through .the negligence of the defendant. Boetzkes was the attending physician of the plaintiff, and. the affidavit states that the defendant desires the physician’s testimony in respect of what took place between himself and Dr. McNaughton at the time of the consultation between them respecting the condition of the plaintiff; also in respéct to *539certain statements made b.y the plaintiff to this physician concerning the circumstances under which, the injury was received and the number of times the physician attended her. It cannot be very material as to the number of times the physician attended the plaintiff, as it is not a subject-matter of much dispute. It is quite clear that the physician may not testify to the statements made by the plaintiff to him at the time he was treating her. It is also quite doubtful if this does not embrace statements concerning how the injury was received.

The court below denied the application on the ground of the physician’s incompetency to testify, and we agree with it that the court may not anticipate a condition which would make his testimony competent.

Upon the oral argument defendant’s counsel limited his range of inquiry to what transpired at the consultation, and respecting the plaintiff’s prior condition, claiming that he was entitled to this much in view of the fact that Dr. IVIeYaughton would be called,, and thereby open the door so as to make the witness competent to-testify. The plaintiff’s counsel, in answer to this, stipulates that he will not call Dr. IVIeYaughton with reference to the only consultation he had with the witness proposed to be examined. It would, therefore, seem as if the case was not sufficient to call for the issuing of a commission to take his testimony.

The order should, therefore, be affirmed, but, in view of the stipulation, without costs.

All concurred.

Order affirmed, without costs, upon plaintiff’s filing the stipulation mentioned in memorandum per curiam.