¶1This is an uncontested action for the annulment; of a marriage. After hearing the evidence submitted by the plaintiff, the justice presiding at Special Term made an order in the “short form” now authorized by section 767 of the Code of Civil Procedure, as amended by chapter 368 of the Laws of 1911, dismissing the action. From this plaintiff appeals treating it as a judgment. While we are not convinced that the action should have been dismissed for the reason given by the justice at the close of the testimony, we are of opinion that the dismissal was right because there was no legal evidence of the existence of the disability of which plaintiff complains. There was evidence given by a physician, but this was clearly incompetent and should' not have been received. Section 834 of the Code of Civil Procedure provides that a physician “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.” That is precisely what the physician was allowed to do in the present case. It is of no consequence that the defendant- was not present to object to the evidence. The Code does not provide that such evidence may be received if not objected to. The prohibition is absolute that the physician shall not be allowed to testify, and it remains effective unless the provisions are expressly waived on the trial by the patient. (Code Civ. Proc. § 836.) The court should have refused to receive the evidence, and, if it was -received inadvertently, should have disregarded it. If it was disregarded there was no evidence, in the case to uphold the allegations of the complaint. The order was right and is affirmed.
¶2Ingraham, P. J., McLaughlin, Miller and Dowling, JJ., concurred.
¶3Order affirmed. Order to be settled, on notice.