Brearton v. De Witt
| Decision Date | 11 February 1930 |
| Citation | 252 N.Y. 495,170 N.E. 119 |
| Parties | BREARTON v. DE WITT et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by Mae L. Brearton against Cora E. DeWitt and another, executors of the estate of Elden C. DeWitt, deceased. From an order (226 App. Div. 511, 234 N. Y. S. 716), reversing an order of the Special Term, which denied defendants' motion for judgment on the pleadings dismissing the complaint, and which granted a motion to dismiss the complaint, plaintiff appeals.
Reversed, and order of Special Term affirmed.
Appeal from Supreme Court, Appellate Division, First department.
Bernard H. Sandler and William R. Willcox, both of New York City, for appellant.
Caruthers Ewing, of New York City, for respondents.
The complaint in this action, as supplemented by the bill of particulars, has been held to be insufficient, as not stating a cause of action, and by a motion made on the pleadings has been dismissed. The allegations, no doubt, present a peculiar case, which upon a trial may not prove to be the facts, or else, by reason of other circumstances, carry an entirely different meaning. Nevertheless, the legal principles to be applied to the complaint are old and well understood.
The plaintiff states a cause of action on contract, wherein she alleges the consideration, the performance upon her part, partial performance by the deceased, and his subsequent breach. On its face the pleading states a cause of action.
The facts as related are these: For six years prior to the 9th day of December, 1925, the plaintiff had suffered from a dangerous illness and disease, which from the bill of particulars proved to be syphilis. This disease was the direct result and consequence of dangerous injections, inoculations of germs administered to her by the deceased, Elden C. DeWitt. In consequence of thus inoculating the plaintiff with these syphilis germs, the deceased, on the 9th day of December, 1925, made an agreement with her tending to and aiming at a cure or relief from her suffering, and a recognition of his responsibility therefor. Plaintiff on her part promised to do certain things. She promised to give up her position, by which she earned her living. She was a saleswoman in the fur department of B. Altman & Co., New York City, receiving $40 a week. She kept her promise and left the place. She promised to isolate herself from all society and friends, and carried out this obligation by resigning from active membership in the First Church of Spiritual Communion, of which she was vice president, and arranging to relinquish a rooming-house which she was conducting at 112 Riverside drive. A further act was promised and performed. The plaintiff was required by her agreement to submit herself to the direction and control of Elden C. DeWitt for the treatment and cure of her disease. This obligation she kept by attending the Vanderbilt Clinic on various occasions at DeWitt's direction, and taking treatment, salves, and medicines administered by him or by persons under his supervision. At all times she held herself ready to do and to go as directed or requested by the deceased. She went to Florida for a two months' rest, at his request.
What was Elden C. DeWitt to do for the plaintiff? He promised by the agreement to pay the plaintiff $1,000 a month for the rest of her natural life, and he kept his promise for the period of five months, or up until May of 1926. Thereafter he failed to meet these payments, and died the 29th day of March, 1927. At the time of his death there was due and owing to the plaintiff $1,000 a month for 10 months, or $10,000, and this action is brought, not only for this sum, but against the executors of DeWitt's estate for damages resulting from his breach of contract.
This analysis shows an agreement on the part of DeWitt to pay the plaintiff $1,000 a month during her life, in consideration for her promise to do and perform some very substantial things. The plaintiff kept her promise and performed her part of the contract up to the death of DeWitt, and if the allegations be true, and the contract legal, she would have her remedy. Werner v. Werner, 169 App. Div. 9, 154 N. Y. S. 570;Adams v. Honness, 62 Barb. 326;Devecmon v. Shaw, 69 Md. 199, 14 A. 464,9 Am. St. Rep. 422;Paige v. Ripley, 12 Vt. 289;Hoshor v. Kautz, 19 Wash. 258, 53 P. 51; Carlill v. Carbolic Smoke Ball Co. [1892] 2 Q. B. 484.
On first reading of this complaint, the impression may be gathered that the contract was one made between a doctor and his patient, whereby the patient agreed for a consideration to submit to the doctor's treatment. As there is no allegation in the complaint that the deceased was a licensed practitioner, it is claimed that the agreement is illegal, as violating the laws of this state. By section 1263 of the Education Law (Consol. Laws, c. 16), and formerly section 174 of the Public Health Law (Consol. Laws, c. 45), derived from Laws of 1907, c. 344, § 15, any person who, not being lawfully authorized to practice medicine, practice such calling within this state, is guilty of a misdemeanor. It is said that this agreement called for treatment of the plaintiff by the deceased...
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