¶1I dissent upon the authority of Capron v. Douglass (193 N. Y. 11); Dewey v. Cohoes & Lansingburgh Bridge Co. (170 App. Div. 117). It seems to me that the plaintiff waived her privilege of objecting to the testimony of Dr. Whitney by giving her own testimony, and that of her other physicians, who treated her for the injuries of which she complains and for which she seeks to recover damages from the defendant. While the examination of the plaintiff by Dr. Whitney was not made in the presence of the other physicians whose testimony was taken on her behalf, it related to the same injuries and the examination was made about the time of that of the other physicians, and besides, the plaintiff herself very fully disclosed all of her ailments resulting, as she claimed, from these injuries, and she herself gave testimony of what was said and done by Dr. Whitney, although Dr. Whitney might have testified to more than she did. Merely because Dr. Whitney’s testimony might have been at variance with her own, or with that of the other physicians, respecting her injuries, furnishes no good reason for depriving the defendant of his testimony.
¶2In each case judgment and order affirmed, with costs.