Birch v. Sees

Appellate Division of the Supreme Court of New York

Birch v. Sees

178 A.D. 609, 165 N.Y.S. 846, 1917 N.Y. App. Div. LEXIS 6542

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 8, 1917

StatusPublished

Cited by2 cases

This text of 178 A.D. 609 (Birch v. Sees) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Birch v. Sees, 178 A.D. 609, 165 N.Y.S. 846, 1917 N.Y. App. Div. LEXIS 6542 (N.Y. Ct. App. 1917).

Pincite

Opinion

Per Curiam:

We must take it as established by this verdict that the plaintiff, an attending physician and a life-long acquaintance [610]*610of deceased, having, testified on a prior trial as an expert witness for the proponent, at an agreed compensation of fifty dollars per day, was thereafter employed by a succeeding attorney for the proponent at the same terms, to go over the witness’ records to prepare himself so as to give expert testimony on the issue of the deceased’s mental soundness, which he did on two trials. It is, however, objected that as plaintiff had been the attending physician, his testimony was not that of an expert, and that such agreement for compensation should not be enforced. It seems settled that if a medical witness, or other witness with technical qualifications, goes beyond mere testimony to facts, observed by the senses, and is asked to draw a technical inference or conclusion, he may properly stipulate for compensation. (People v. Montgomery, 13 Abb. Pr. [N. S.] 207, 240; Barrus v. Phaneuf, 166 Mass. 123. See Chamberlayne Ev. § 2371.)

The facts in the case at bar are, therefore, within the permissive rule. The judgment and order should, therefore, be affirmed, with costs.

Jenks, P. J., Stapleton, Rich, Putnam and Blackmar, JJ., concurred.

Judgment and order unanimously affirmed, with costs.

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Per Curiam:

We must take it as established by this verdict that the plaintiff, an attending physician and a life-long acquaintance [610]*610of deceased, having, testified on a prior trial as an expert witness for the proponent, at an agreed compensation of fifty dollars per day, was thereafter employed by a succeeding attorney for the proponent at the same terms, to go over the witness’ records to prepare himself so as to give expert testimony on the issue of the deceased’s mental soundness, which he did on two trials. It is, however, objected that as plaintiff had been the attending physician, his testimony was not that of an expert, and that such agreement for compensation should not be enforced. It seems settled that if a medical witness, or other witness with technical qualifications, goes beyond mere testimony to facts, observed by the senses, and is asked to draw a technical inference or conclusion, he may properly stipulate for compensation. (People v. Montgomery, 13 Abb. Pr. [N. S.] 207, 240; Barrus v. Phaneuf, 166 Mass. 123. See Chamberlayne Ev. § 2371.)

The facts in the case at bar are, therefore, within the permissive rule. The judgment and order should, therefore, be affirmed, with costs.

Jenks, P. J., Stapleton, Rich, Putnam and Blackmar, JJ., concurred.

Judgment and order unanimously affirmed, with costs.

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Bluebook (online)

178 A.D. 609, 165 N.Y.S. 846, 1917 N.Y. App. Div. LEXIS 6542, Counsel Stack Legal Research, https://law.counselstack.com/opinion/birch-v-sees-nyappdiv-1917.

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