Birch v. Sees

Per Curiam: We must take it as established by this verdict that the plaintiff, an attending physician and a life-long acquaintance [610] of deceased, having, testified on a prior trial as an expert witness for the proponent, at an agreed compensation of fifty dollars per day, was thereafter employed by a succeeding attorney for the proponent at the same terms, to go over the witness’ records to prepare himself so as to give expert testimony on the issue of the deceased’s mental soundness, which he did on two trials. It is, however, objected that as plaintiff had been the attending physician, his testimony was not that of an expert, and that such agreement for compensation should not be enforced. It seems settled that if a medical witness, or other witness with technical qualifications, goes beyond mere testimony to facts, observed by the senses, and is asked to draw a technical inference or conclusion, he may properly stipulate for compensation. (People v. Montgomery, 13 Abb. Pr. [N. S.] 207, 240; Barrus v. Phaneuf, 166 Mass. 123. See Chamberlayne Ev. § 2371.) The facts in the case at bar are, therefore, within the permissive rule. The judgment and order should, therefore, be affirmed, with costs. Jenks, P. J., Stapleton, Rich, Putnam and Blackmar, JJ., concurred. Judgment and order unanimously affirmed, with costs.