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uphold the judgment, however erroneous it may be, if there be any question of fact in the case which, if there had been any evidence to support it and if it had been found in favor of the respondent, would suffice to support the judgment, even though there be no such evidence and no such finding.

The question arises as to what remedy is to be applied to restore the jurisdiction of the Court of Appeals and to free it from the technical restrictions which now. surround it. The remedy which I would propose is a very simple one. I proposed it in the Constitutional Commission of 1890, and did my best to secure its adoption, but without success. It is this: Amend the Judiciary Article of the Constitution so as to repeal the provision as to the effect of a unanimous affirmance of a finding of fact or of a verdict not directed by the court and so as to provide that in no case shall an appeal lie to the Court of Appeals from any judgment of unanimous affirmance by the Appellate Division, unless the case be certified up by the Appellate Division, or by the Court of Appeals itself. This remedy seems at first very drastic, but, upon reflection, it will be seen to be far from an extreme provision. Any case involving questions of law of importance, or doubt, would be certified up freely by the Appellate Division, or could be certified up by the Court of Appeals itself. On the other hand, cases involving no questions of moment or doubt would stop at the Appellate Division as a matter of course, if the judgment below is unanimously affirmed. The Court of Appeals would thus be relieved of a vast amount of litigation now going up as matter of right, involving exceptions to evidence, or exceptions to a verdict directed by the court, or exceptions to a nonsuit, where the questions involved are not of sufficient importance to justify a certification.

This practice, too, would be in accord with the theory that the individual litigant is only entitled, as of right, in any case, to one appeal, and that a second appeal should be allowed only in the interests of the State at large, or in the interests of harmonious and uniform jurisprudence. This proposed remedy would also conform the practice in this State to the practice in the federal courts, as now established, which practice has worked and is working with entire satisfaction, so far as this feature of it is concerned, both to the Bar and the Bench. Practically, all cases at common law and in equity and in admiralty are now appealed, as of right, only to the Circuit Court of Appeals, corresponding to our Appellate Division. Any case, however, may be certified up by the Circuit Court of Appeals to the Supreme Court of the United States, or may be brought up by that court on certiorari. The effect of this legislation has been to reduce the volume of business in the Supreme Court, so that tnat court can conveniently handle it and can keep within a reasonable distance of working off its yearly calendar. On the other hand, cases involving questions of general public interest, or important questions of law, or questions on which the different Circuit Courts of Appeal have differed are freely certified up or removed by certiorari to the Supreme Court. By the amendment I suggest the same result would, I think, be accomplished in our appellate tribunals; the Court of Appeals would be relieved of a vast volume of useless and needless appeals, while cases of interest and importance could be readily certified up by the court below, or by the Court of Appeals itself. When so certified up, the questions involved would be examinable and reviewable, as they used to be under the old practice. It would still remain true that only questions of law could be reviewed by the Court of Appeals; but the question

of law, whether there was any evidence to support a finding, or a verdict, or a decision of a trial court or referee, would be open to review once more, as it used to be and as it now is not.

In the meantime, and until such constitutional amendment could be adopted, I think we should take a step backwards in the direction of requiring, or at least authorizing, the making of findings of fact by a trial court or a referee, in place of the short form of decision which is now authorized, and which the Court of Appeals has held to be equivalent to a general verdict, and to import a finding in favor of the successful party on every question of fact involved in the case, whether or not supported by any evidence. I would recommend the amendment of section 1022 of the Code of Civil Procedure, so as to provide that the trial court or referee may make a short and concise decision, in which, however, he shall state such facts as he has found, which he deems material and necessary to his conclusions of law, and he shall not be considered to have found any other facts. I would also amend section 191 of the Code, so as to provide that only those facts which are affirmatively found by the trial court shall be considered to have been affirmed by the Appellate Division.

In conclusion, let me say that I fully realize the difficulty of securing the adoption of any constitutional amendment, especially where the object to be accomplished is not obvious to the public at large, or even, at first sight, to the members of our own profession. I have felt it, however, to be my duty, as President of this Association, to bring this matter before you for consideration, and to do what little I can personally to remedy what seem to me to be very serious defects in the provisions of the new Constitution to which I have called attention.

It is at least feasible to amend the Code so as to remedy the defects to a certain extent as I have already indicated.

It is the special function of this Association to guard and conserve the interests of the public, so far as within its power, and it is especially our function to guard and conserve the judiciary system of the State where its efficiency is impaired or is likely to be impaired.

The Court of Appeals of our State has been, heretofore, the keystone of the judicial arch, preserving the stability and symmetry of our entire judicial system. That court has commanded the respect and confidence of the profession, who have been jealous of any attempt to limit its functions or to take away its power, on review, over all subordinate tribunals.

I commend this matter to the careful consideration of the Committee on Law Reform, and also to the careful consideration of all members of this Association.

W. Martin Jones, of Rochester:

(Applause.)

Mr. Secretary, I move that the Association extend to the President a cordial vote of thanks for the very able address that he has just given us.

The motion was seconded and carried.

The President:

Mr. John DeWitt Peltz, of Albany, will now read a paper entitled "Some Needed Amendments to the Code Relative to Waiver of Physicians' Privilege."

SOME NEEDED AMENDMENTS TO THE CODE
REGARDING THE WAIVER OF PHYSICIANS'
PRIVILEGE.

Every learned profession carries with it responsibilties, and he who can best and most easily respond to their demands will be at the same time the most helpful to others and the most successful for himself.

I well remember a remark once made to me by a distinguished physician. He said: "I can readily under"stand how one can take the responsibility of another "man's life, as a doctor does, or of his soul, as a clergyman 'does, but I could never understand how one can take the responsibility of another man's pocketbook, "lawyer does."

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I told him that we of the law do not, as a rule, find the burden intolerable, but, on the contrary, that we are usually willing to have it a little heavier.

Foremost among the obligations and responsibilities which a professional man assumes is that of absolute respect for the inviolability of the confidence reposed in him. Men go to others for professional advice because they need help, and it is often necessary for them to disclose matters which are personal to themselves, and which they would not disclose if it were not absolutely necessary to do so in order to get the help which they require.

And they have a right to expect that what they tell to their advisers will be respected as their individual property, and that it will not be unnecessarily divulged to others.

In no case is this true to a greater extent than in the relation between a physician and his patient. The information which a physician must obtain in order to

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