Hannon v. Siegel-Cooper Co.

• Decision Date: 04 June 1901
• Citation: 167 N.Y. 244
• Court: New York Court of Appeals Court of Appeals
• Parties: MARY F. HANNON, Respondent, v. SIEGEL-COOPER COMPANY, Appellant.

167 N.Y. 244

60 N.E. 597

HANNON

v.SIEGEL-COOPER CO.

Court of Appeals of New York.

June 4, 1901.

Appeal from supreme court, appellate division, Second department.

Action by Mary F. Hannon against the Siegel-Cooper Company. From a judgment of the appellate division (65 N. Y. Supp. 1135) affirming a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

Gibson Putzel, for appellant.

Charles Haldane and Abraham Levy, for respondent.

CULLEN, J.

The complaint charged that the defendant, a corporation, conducting a department store in the city of New York, represented and advertised itself as carrying on the practice of dentistry in one of its departments; that the plaintiff employed the defendant to render the necessary professional labor in the treatment of her teeth, and paid therefor; that the defendant's servant performed said work so carelessly, negligently, and unskillfully that plaintiff's jaws and gums were injured, for which malpractice she claimed damages.The answer, in substance, was a general denial. Plaintiff had a verdict at the trial term, and the judgment on the verdict has been unanimously affirmed by the appellate division.

The public health law, by section 164, makes it a misdemeanor for any person to practice, or to hold himself out to the public as practicing, dentistry, in any county in this state, without being licensed to practice as such, and registered in the office of the clerk of the county, and it would seem that the action of the defendant, in assuming to carry on the business of dentistry, was illegal and ultra vires. But, though it was beyond the corporate powers of the defendant to engage in the business, this does not relieve it from the torts of its servants committed therein (Bissel v. Railroad Co., 22 N. Y. 258), and the unanimous affirmance of the appellate division is conclusive to the effect that it either practiced dentistry or held itself out as practicing dentistry. The only question cognizable by us arises upon the appellant's exception to the following charge of the trial court: ‘If the defendants in this case made representation to the plaintiff, on which she relied, that they were conducting a dentist business in their store, and if she, because of those representations, hired the workman in the store of the defendants, with no knowledge that the business was conducted by Mr. Hayes individually, you may find the defendants responsible for the acts of the dentist who treated the plaintiff, even though Mr....