Davidson agt. The Mayor, &c., of New York. The board of alderinen, exercising the powers of supervisors (chap. 304, Laws of 1874), adopted an ordinance on January 21, 1875, fixing the compensation of the sheriff for such objects at a specified rate. The plaintiff assumed the office of sheriff on January 1, 1883, and the act of the legislature under examination was passed on May 14, 1884. The board of estimate and apportionment adopted on December 29, 1884, a resolution by which they allowed a lower rate for such objects than that fixed by the board of aldermen. It thus appears that while the legislature did not directly reduce the fees of the sheriff, it accomplished such reduction indirectly by transferring from one local authority to another the power to make the change of compensation. The prohibition against doing an act extends, of course, to all indirect, roundabout or covert attempts to do the thing forbidden. In the case of the legislature, the prohibition against passing a local bill decreasing official fees extends to enactments which confer upon others the power to do so at their pleasure. If it did not, the provisions of the constitution might be easily evaded. It is not to be supposed that the legislature intended in the act of 1884, under examination, a violation of the constitutional provisions above cited, and therefore the act will not be construed as authorizing any interference with the fees of the then incumbent of the sheriff's office. The fixing of compensation authorized will be deemed to apply to his successors in office. We held in a similar case that the legislative enactment should be construed to apply to future appointments, and not to the persons in office at the time of its passage (Ricketts agt. The Mayor, 57 How. Pr. R., 320). The correctness of the application of the principle in that case may be doubtful in view of the later decision of the court of appeals in Mangam agt. The City of Brooklyn, holding that the constitutional provision in question did not protect salaried officers, but was to be confined to those whose compensation was by fees, per centages and allowances. But the principle on which Westover agt. The Etna Life Insurance Company. the decision was based is directly applicable to the case before us, and the opinion therein delivered must control. I think that judgment should be ordered for plaintiff. COURT OF APPEALS. ROBERT R. WESTOVER, as executor, &c., of HIRAM GOVE, deceased, agt: THE ETNA LIFE INSURANCE Co. Code of Civil Procedure, section 834 - When physician not allowed to testify— Personal representatives cannot waive prohibition of statute. By section 834 of the Code of Civil Procedure, a physician is prohibited from disclosing any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity, and the seal of the law placed upon such disclosures can be removed only by the express waiver of the patient himself. Whenever the evidence comes within the purview of the statute it is absolutely prohibited and may be objected to by any one, unless it be waived by the person for whose benefit the statute was enacted. An executor or administrator does not represent a deceased person for the purpose of making such a waiver. He represents him simply in reference to right of property and not in reference to those rights which pertain to the person and character of the testator (Reversing S. C., ante, 163). Decided April, 1885. THIS is an appeal from an order of the supreme court, general term, fourth department, affirming an order denying a motion for a new trial upon the minutes of the court, and denying a motion for a new trial made upon a case and exceptions, and from the judgment entered on such order. This action is brought to recover upon a life insurance policy issued by the defendant upon the life of Hiram Gove, on the 11th day of July, 1874, upon the application of said Gove, Westover agt. The Etna Life Insurance Company. for the sum of $4,000, payable to himself within ninety days after due notice and proof of death. Gove, the insured, died on the 15th day of October, 1881. The plaintiff, Robert R. Westover, was appointed executor of the estate of said Gove on the 9th day of November, 1881. On the 12th day of January, 1882, the plaintiff prepared and furnished proofs of loss, and at the expiration of ninety days, the policy not being paid, this action was commenced. In and by the express provisions of this contract of insurance, it was, among other things, mutually agreed by and between the assured and the defendant, and the policy was issued by the defendant and accepted by the assured, upon the express condition and agreement that in case the assured should commit suicide, or die by his own hand, the policy should become and be null and void. It was also, in and by the express terms and conditions of said policy of insurance, and in and by the express terms and conditions of the application for said policy, which, by the express terms and conditions of said policy, and of said application, was made a part of the contract of insurance, expressly agreed and warranted, among other things, by and on the part of the assured and the defendant, and the policy was issued upon the express agreement and warranty of the assured, that the answers, statements, representations and declarations contained in or indorsed upon the said application, were and each of them was in all respects true, and that if said policy was obtained by or through any fraud, misrepresentation or concealment, or by any false statement, the policy should be absolutely null and void, and all moneys which may have been paid on account thereof should be forfeited to the defendant. In and by the application for said policy, the assured, among other things, stated and declared and warranted that "neither of the parents, brothers, sisters or other near relatives had been afflicted with rheumatism, insanity, or with pulmonary, scrofulous or any other constitutional disease, hereditary in its character." It appeared that Gove committed suicide, or VOL. II 24 Westover agt. The Etna Life Insurance Company. died by his own hand, and that at least a sister of the assured had been insane. These conditions and facts raised various questions, which are fully stated in the annexed points, and submitted for consideration. The cause was tried before Mr. justice Dwight and a jury, on the 9th, 10th and 11th days of January, 1883, resulting in a verdict in favor of plaintiff for $4,188, the full amount of the policy. A motion was thereupon made for a new trial upon the minutes of the court, which was denied, and from the order denying such motion an appeal was taken. Upon the rendering of the verdict the case was ordered to be heard in the first instance at general term, upon case and exceptions, and judgment directed to be entered as security, and all proceedings thereon to be suspended until the hearing and determination at general term The cause was accordingly heard at general term, resulting in an order affirming the order appealed from, and denying the motion for a new trial upon case and exceptions, and directing judgment upon the verdict and judgment was accordingly entered. And the case comes here on appeal from that order and judgment. Rollin Tracy, for defendant, appellant, made and argued among others the following point: I. The evidence of Dr. Briggs as a witness for the plaintiff should have been excluded as privileged, under section 833 of the Code of Civil Procedure, under the objection of the defendant. The plaintiff called Dr. Briggs as a witness in his behalf, and after showing by the witness that he was, and for upwards of fifty years had been a practicing physician ; that he knew the insured in his lifetime, attended him professionally, and visited him first on the 29th day of June, 1881, the witness was allowed to testify as to how he found the assured, his treatment, &c., under the objection of the defendant. "That the evidence was incompetent and privileged under section 834 of the Code of Civil Procedure. The witness being a practicing physician and the evidence being a disclosure of information Westover agt. The Etna Life Insurance Company. acquired by him in attending Gove in a professional capacity, and necessary to enable him to act in that capacity, the witness should not be allowed to testify and disclose the information so acquired." The evidence introduced under this objection was for the purpose of establishing the insanity of the insured as the cause of suicide, a fact necessary to be established to enable the plaintiff to recover, and was the most serious evidence upon that question in the case. The section of the Code under which the objection to this testimony was made is as follows: "SEC. 834. A person duly authorized to practice physic or surgery shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity." This statute absolutely prohibits the physician from disclosing any information which he acquired in attending a patient in a professional capacity and which was necessary to enable him to act in that capacity. The evidence of the witness was clearly "a disclosure of information acquired by him in attending the insured in a professional capacity, and which was necessary to enable him to act in that capacity. And unless there is some statute relieving this section from this absolute prohibition, this evidence was improperly admitted under this exception. No such relief is to be found, unless it be under section 836 of the Code, which provides: "Sec. 836. The last three sections apply to every examination of a person as a witness, unless the provisions thereof are expressly waived by the person confessing the patient or the client" The three sections. referred to are those relating to confessions made to clergymen, the information furnished physicians, and the communications to an attorney; and its only materiality here is as to its bearing upon section 834, referring to information furnished physicians by the patient, &c. This section (836) seems to be merely for the purpose of enabling the patient to waive the prohibition of the other section (834) and allow the evidence of the physician to be introduced when offered by the party opposed, not for the purpose of enabling the |