Plaintiff insurance company, in an action to rescind and cancel a certificate of interest in a group policy of life insurance on the ground that the insured misrepresented the condition of his health when he procured the certificate, appeals from an order denying its application for an examination of certain witnesses before trial. Order reversed on the law and the facts, with ten dollars costs and disbursements, and the motion granted, without costs. It was held by the Special Term that defendant, beneficiary of the certificate of insurance, has the right to invoke section 352 of the Civil Practice Act, which prohibits disclosure by a physician of information concerning the physical condition of a patient which was acquired by him in treating the patient in a professional capacity. The administratrix of the insured, in a separate action by her against another insurance company, waived the benefit of section 352, and we hold that such waiver operated also as a waiver of the benefit of the same section in this action. ( People v. Bloom, 193 N.Y. 1, 7, 8; Steinberg v. N.Y. Life Ins. Co., 263 N.Y. 45, 49, 50.) Settle order on notice within ten days from date of this decision. Close, P.J., Hagarty, Carswell, Adel and Taylor, JJ., concur.