Conklin v. Draper

CourtNew York Court of Appeals
Writing for the CourtPER CURIAM.
Citation173 N.E. 892,254 N.Y. 620
Decision Date21 October 1930
PartiesCONKLIN v. DRAPER.

254 N.Y. 620
173 N.E. 892

CONKLIN
v.
DRAPER.

Court of Appeals of New York.

Oct. 21, 1930.


Action by Julia Conklin against John W. Draper. From an order of the Appellate Division (229 App. Div. 227, 241 N. Y. S. 529), which reversed an order of Special Term denying a motion for dismissal of the first cause of action set forth in the complaint, and granted the motion, plaintiff appeals, and question is certified.

Order of Appellate Division affirmed, and question answered.

Appeal, by permission (229 App. Div. 849, 242 N. Y. S. 923), from an order of the Appellate Division of the Supreme Court in the First Judicial Department (229 App. Div. 227, 241 N. Y. S. 529), entered May 2, 1930, which reversed an order of Special Term denying a motion for a dismissal of the first cause of action set forth in the complaint and granted the motion. The action, commenced July 5, 1929, was to recover for alleged malpractice committed on or about May 27, 1925, it being conceded that the defendant did not attend or treat the plaintiff subsequent to June 10, 1925. The complaint alleged as a first cause of action that the plaintiff employed the defendant to perform a surgical operation upon her, and that in the course of the operation defendant used a pair of arterial forceps which he failed to remove before closing the wound, and that by reason thereof the plaintiff was forced to undergo a second operation. The following question was certified: ‘Under the circumstances set forth herein is the first cause of action contained in the complaint herein barred by the Statute of Limitations contained in section 50, subdivision 1, of the Civil Practice Act.’

[173 N.E. 893]


[254 N.Y. 621]James B. McDonough, Jr., and Arthur C. Power, both of New York City, for appellant.

Lorenz J. Brosnan, of New York City, for respondent.


PER CURIAM.

Order affirmed, with costs; question certified answered in the affirmative.

CARDOZO, C. J., and POUND, CRANE, LEHMAN, KELLOGG, O'BRIEN, and HUBBS, JJ., concur.

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50 practice notes
  • Flanagan v. Mount Eden General Hospital
    • United States
    • New York Court of Appeals
    • April 17, 1969
    ...Limitations begins to run from the commission of the act (Conklin v. Draper, 229 App.Div. 227, 241 N.Y.S. 529, affd. 254 N.Y. Page 26 620, 173 N.E. 892). At the time we considered Conklin no other jurisdiction had a contrary Just recently in Schwartz v. Heyden Newport Chem. Co. (12 N.Y.2d 2......
  • Shideler v. Dwyer, No. 381S55
    • United States
    • Indiana Supreme Court of Indiana
    • March 3, 1981
    ...property of another, a cause of action for such wrong immediately accrues. Conklin v. Draper, 229 App.Div. 227, 241 N.Y.S. 529, affirmed 254 N.Y. 620, 173 N.E. 892; Wiener v. Ellrodt, 268 N.Y. 646, 198 N.E. 537; Capucci v. Barone, 266 Mass. 578, 165 N.E. "We must apply that rule here. The i......
  • Manno v. Levi
    • United States
    • New York Supreme Court Appellate Division
    • July 11, 1983
    ...the person or property of another, a cause of action for such wrong immediately accrues. (Conklin v Draper, 229 App.Div. 227 ; affd. 254 N.Y. 620 ; Wiener v Ellrodt, 268 N.Y. 646 ; Capucci v Barone, 266 Mass. 578 "We must apply that rule here. The injury to the plaintiff was complete when t......
  • Tessier v. United States, No. 5424.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • July 31, 1959
    ...v. Denton, 1942, 138 Tex. 145, 157 S.W.2d 878; Conklin v. Draper, supra, 229 App.Div. 227, 241 N.Y.S. 529, affirmed without opinion, 1930, 254 N.Y. 620, 173 N.E. 892; Pickett v. Aglinsky, 4 Cir., 1940, 110 F.2d 628 (W.Va. law). Contra, Thatcher v. De Tar, 1943, 351 Mo. 603, 173 S.W.2d 760; ......
  • Request a trial to view additional results
50 cases
  • Flanagan v. Mount Eden General Hospital
    • United States
    • New York Court of Appeals
    • April 17, 1969
    ...Limitations begins to run from the commission of the act (Conklin v. Draper, 229 App.Div. 227, 241 N.Y.S. 529, affd. 254 N.Y. Page 26 620, 173 N.E. 892). At the time we considered Conklin no other jurisdiction had a contrary Just recently in Schwartz v. Heyden Newport Chem. Co. (12 N.Y.2d 2......
  • Shideler v. Dwyer, No. 381S55
    • United States
    • Indiana Supreme Court of Indiana
    • March 3, 1981
    ...property of another, a cause of action for such wrong immediately accrues. Conklin v. Draper, 229 App.Div. 227, 241 N.Y.S. 529, affirmed 254 N.Y. 620, 173 N.E. 892; Wiener v. Ellrodt, 268 N.Y. 646, 198 N.E. 537; Capucci v. Barone, 266 Mass. 578, 165 N.E. "We must apply that rule here. The i......
  • Manno v. Levi
    • United States
    • New York Supreme Court Appellate Division
    • July 11, 1983
    ...the person or property of another, a cause of action for such wrong immediately accrues. (Conklin v Draper, 229 App.Div. 227 ; affd. 254 N.Y. 620 ; Wiener v Ellrodt, 268 N.Y. 646 ; Capucci v Barone, 266 Mass. 578 "We must apply that rule here. The injury to the plaintiff was complete when t......
  • Tessier v. United States, No. 5424.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • July 31, 1959
    ...v. Denton, 1942, 138 Tex. 145, 157 S.W.2d 878; Conklin v. Draper, supra, 229 App.Div. 227, 241 N.Y.S. 529, affirmed without opinion, 1930, 254 N.Y. 620, 173 N.E. 892; Pickett v. Aglinsky, 4 Cir., 1940, 110 F.2d 628 (W.Va. law). Contra, Thatcher v. De Tar, 1943, 351 Mo. 603, 173 S.W.2d 760; ......
  • Request a trial to view additional results

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