Fisher v. Fisher. Fisher v. Fisher (30 St. Rep. 363; s. c., 9 N. Y. Supp. 4; 55 Hun, 610 mem.) affirmed.* (Decided January, 1892.) Appeal by plaintiffs from a judgment of the general term of the supreme court in the second department affirming a judgment of the Westchester county special term in favor of the defendants. The facts sufficiently appear in the opinion. Martin J. Keogh, for plaintiffs, appellants. Isaac N. Mills, for defendant, respondent. EARL, J.-This is an action of partition brought by the plaintiffs to partition lands alleged in the complaint to belong to the parties to the action as tenants in common. The main controversy upon the trial was over a deed executed by Eliza Fisher on the 11th day of April, 1888. The title of the plaintiffs and of some of the defendants to a portion of the lands sought to be partitioned depended upon the validity of that deed. Some of the defendants claimed that it was procured by fraud and undue influence, and that therefore it was void and inoperative. Upon that question considerable evidence was given upon both sides; and the trial judge found that the deed was procured by improper influence, and that therefore it was void and inoperative. We have carefully scrutinized the evidence, and see no reason to doubt that the conclusion of the trial judge was abundantly supported, and that his judgment thereon should not be disturbed. There were no facts or circumstances in the case * The general term opinion treats primarily the question of fact. It is reported in full in 30 St. Rep. 363 and 9 N. Y. Supp. 4, but merely the fact of the decision is stated in 55 Hun, 610. VOL. XXII.-4. Fisher v. Fisher. which estopped the parties assailing that deed from claiming its invalidity. Upon the trial Doctor Curtis was called to give evidence as to the mental condition of Eliza Fisher at or about the time when she executed the deed. It appeared that he had attended and prescribed for her professionally, and that he had also seen her at various times when he was not in attendance upon her for the purpose of treating her professionally. He was asked various questions as to her mental condition, excluding from his mind in answering the questions any knowledge or information which he had obtained as to her condition while acting as her medical attendant, and confining his answers to such knowledge and information as he had obtained of her by seeing her when she was not his patient. Counsel for the plaintiffs objected to the competency of the witness under § 834 of the Code. The court overruled the objection, and the witness was permitted to answer, and he gave material evidence as to the mental condition of Eliza Fischer. In this there was clearly no error (Edington v. Etna Ins. Co., 77 N. Y. 564; People v. Schuyler, 106 Id. 304; Hoyt v. Hoyt, 112 Id. 515).* * That there must exist a professional employment before there can be a professional privilege was held with respect to an attorney in Haulenbeck v. McGibbon (20 N. Y. Civ. Pro. 406), Sheldon v. Sheldon (33 St. Rep. 754; s., c. 11 N. Y. Supp. 477), Brennan v. Hall (20 N. Y. Civ. Pro. 434). The same rule was applied to testimony relating to communications to a physician in Renihan v. Dennin (103 N. Y. 573, affg. 38 Hun, 270), Grossman v. Supreme Lodge K. and L. of Honor (6 N. Y. Supp. 821), Matter of Freeman (46 Hun, 458), Stowell v. Amer. Coop., etc., Assn. (23 St. Rep. 706; s. c., 5 N. Y. Supp. 233), Burley v. Barnhard (9 St. Rep. 587), Heath v. Broadway & Seventh Ave. R. R. Co. (29 St. Rep. 267; s. c., 8 N. Y. Supp. 863; 57 Super. Ct. 496), People v. Kremmler (119 N. Y. 580), Henry v. N. Y., Lake Erie & W. R. R. Co. (19 N. Y. Civ. Pro. 188). The communication made to an attorney must have been confi Weston v. Stoddard. The prohibition of that section applies only to information the physician acquired in attending the patient in a professional capacity, and it does not apply to information obtained by him in any other way. The judgment should be affirmed, with costs. All concurred. WESTON, APPELLANT, v. STODDARD, RESPONDENT. SUPREME COURT, THIRD DEPARTMENT, SPECIAL TERM, SEPTEMBER, 1891, AND GENERAL TERM, DECEMBER, 1891. $$ 968, 3228, 3229. Costs-award of, in action for partition. An action for the partition of real property is an equitable one, and although an issue of fact therein is triable by jury, that does not make the action so triable or bring it within the provision of section 3228, subdivision 1, giving a plaintiff costs in certain cases, but the costs are in the discretion of the court, and may be awarded to the plaintiff and the defendant. Henderson v. Scott (43 Hun, 22) followed; Davis v. Davis (3 St. Rep. 163) not followed. dential to have made it privileged (Smith v. Crego, 54 Hun, 22; Matter of McCarthy, 55 Id. 7; Bartlett v. Burne, 56 Id. 507). In the case of a physician, it must have been made to enable him to act professionally (Matter of Freeman, 46 Hun, 458; Hoyt v. Hoyt, 112 N. Y. 493; Matter of O'Neil, 26 St. Rep. 242; e. c., 7 N. Y. Supp. 197). Where knowledge was acquired by a physician, partly professionally and partly while making friendly visits, and he was unable to separate what was acquired in the different capacities, his testimony was excluded (Matter of Darragh, 52 Hun, 591, rev'g s. c., 15 St. Rep. 452). Weston v. Stoddard. Instance of an action for the partition of real property in which costs were properly awarded both plaintiff and defendant and charged upon the shares of the parties in fault. (Decided at special term, September, 1891; at general term, December, 1891.) Application at special term for costs and allowances in an action for partition. The facts are stated in the opinion. Winsor B. French, for plaintiff. Charles S. Lester, for defendant. KELLOGG, J.-This is an action for partition. Actual partition of the property described in the complaint was directed, and has been made by the commissioners. The total value of the property is conceded to be $10,000. The complaint alleges that Mary R. Stoddard is the owner of three fourths. The complaint also alleges that there are no incumbrances or liens of any nature upon the property. The defendant, Mary R. Stoddard, served an answer claiming, among other things, that she was the owner of a mortgage for $1000 given in 1855 upon the other one fourth interest as the purchase-money of the same. It is clear that she was called upon by the allegation in the complaint above mentioned to make this defence in order to protect her lien by way of mortgage upon this one-fourth interest. The findings of the special term are to the effect that this mortgage was given as alleged in the answer, and no part of it has been paid. As to the issue raised by the reply to that portion of this defendant's answer, namely, that the said mortgage was invalid by reason of the statute of limitations, or was a stale mortgage, the court declined to determine, leaving the owner of said mortgage unprejudiced Weston v. Stoddard. by this partition to make her claim for payment in the ordinary way by foreclosure. In so far as this part of the answer of Mary R. Stoddard is concerned, she has prevailed in the action. As to the other portions of her answer she has failed. It would seem proper that in the determination as to costs she should be entitled to the usual costs for having succeeded upon a single separate count in her answer. The plaintiff in this case has succeeded, however, upon all other issues raised by the answer, and has been put to unnecessary expense in making his proof and establishing his claim as alleged in the complaint to the onefourth of this property. Such expense was necessarily large before the trial justice; and, appeal having been taken therefrom to the general term, it would seem that the question had been contested unreasonably by the defendant, Mary R. Stoddard, having once before been decided by the general term in this district. I have come to the conclusion, therefore, that the plaintiff is entitled to full costs as in partition cases, for the trial before Justice Putnam, and that his costs and disbursements should be taxed as provided by the Code by the clerk of the county of Saratoga; and that in addition to the costs so taxed, the plaintiff is entitled to an additional allowance of two per cent on the value of the property, namely, $10,000; and that the costs so taxed, together with the said additional allowance, be paid, three fourths by the said Mary R. Stoddard, and one fourth by the owners of the remaining one fourth as fixed by the trial court; that the same be a lien on the property so allotted in the said proportions. Also, that the plaintiff shall be entitled to his costs and disbursements on the appeal to the general term; that the same be taxed by the said clerk, and shall be paid by the defendant, Mary R. Stoddard, and shall be a lien upon the portion allotted to her, and that plaintiff shall have an addi |