In re the Probate of the Will of Podolak

10 A.D.2d 794, 197 N.Y.S.2d 904, 1960 N.Y. App. Div. LEXIS 11490

Opinion

— Decree unanimously reversed on the law and facts, with costs, and a new trial granted. Memorandum: The exclusion of testimony of the testratrix’ attending physician on the issue of her mental competency was error. The provisions of section 352 of the Civil Practice Act were expressly waived on the trial. Under the provisions of section 354 of the Civil Practice Act the physician who attended the testatrix could properly disclose any information as to her mental condition which he acquired in attending her professionally except such as would tend to disgrace her memory. The trial court excluded testimony of the testatrix’ attending physician which tended to disclose that the testatrix had failed in memory, power of comprehensive thinking, ability to make decisions, mental alertness and mental capacity to comprehend. Such testimony would not tend to disgrace her memory and it should have been received. (Appeal from a decree of Onondaga Surrogate’s Court admitting the will of decedent to probate after trial, with a directed verdict in favor of proponent.) Present — Bastow, J. P., Goldman, Halpern and Henry, JJ.