Ranalli v. Breed
| Citation | 277 N.Y. 630,14 N.E.2d 195 |
| Parties | Alice RANALLI, Appellant, v. Robert H. BREED, and another, Respondents. |
| Decision Date | 08 March 1938 |
| Court | New York Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Second Department, 251 App.Div. 750, 297 N.Y.S. 688.
Action by Alice Ranalli, as administratrix of the goods, chattels and credits which were of William J. Ranalli, deceased, against Robert H. Breed and Charles V. Keating. The complaint as the first cause of action alleged that in the fall of 1918 when the decedent was five years old he was operated upon by the defendants for pleurisy, that for the purpose of draining the incision to remove the pus from the infant's body, the defendants inserted a rubber tube several inches in length and one-half to three-quarters of an inch in diameter, and that the defendants negligently allowed the tube to slip into the incision and to become lost inside the infant's body. The complaint then alleged that the defendants wholly failed to employ any reasonable means to ascertain whether the tube had slipped into the incision and if so to ascertain the exact position of the rubber tube inside the body. The complaint then alleged that the defendants entered into a common conspiracy to conceal the facts with reference to the tube and negligently and fraudulently discharged the infant from their professional care. The complaint then alleged that on September 8, 1935, more than 17 years thereafter the decedent became ill and suffered severe pain and injury, that x-rays were then taken, revealing the presence of the rubber tube imbedded partially in the upper lobe of his left lung. The rubber tube was removed and on November 14, 1935, the decedent died as a result of the presence of the rubber tube.
The decedent became 21 years old on September 21, 1934. The action was commenced on April 30, 1936. The defendants contended that the action was barred by Civil Practice Act, § 50, which provides that an action for malpractice must be commenced within two years after it accrues and by § 60, subdiv. 1, which provides that in infancy cases the action must be commenced within the regular time limitation or within one year after the disability ceases, whichever is longer, and that in either case the action was barred by limitations.
The plaintiff contended that equity should not allow a defendant to plead statute of limitations when through fraudulent acts plaintiff is caused to be ignorant of his rights, that the action was...
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