ROBINS v. FINESTONE

Decision Date02 June 1955
PartiesLouis D. ROBINS, Appellant, v. Edward O. FINESTONE, Respondent.
CourtNew York Court of Appeals Court of Appeals
Robins v. Finestone, 284 App. Div. 947 reversed Henry G. Littau, Julius Hallheimer and Abraham Heller for appellant. The complaint alleges a special contract between plaintiff and defendant, his physician, whereby for a specific consideration, paid by plaintiff, said defendant unqualifiedly agreed to “cure” plaintiff in one or two days. Since that result was not attained as alleged, the complaint states a good cause of action for breach of contract which is not barred for six years from the date of breach. ( Colvin v. Smith, 276 App. Div. 9; Keating v. Perkins, 250 App. Div. 9; Conklin v. Draper, 229 App. Div. 227, 254 N.Y. 620; Monahan v. Devinny, 223 App. Div. 547; Seanor v. Browne, 154 Okla. 222; Hickey v. Slattery 103 Conn. 716; Burns v. Barenfield, 84 Ind. 43; Frankel v. Wolper, 181 App. Div. 485, 228 N.Y. 582; Blessington v. McCrory Stores Corp., 305 N.Y. 140; McGrath v. Helena Rubinstein, Inc., 29 F. Supp. 822.) Robert C. Heidell for respondent. The complaint alleges a cause of action the gravamen of which is a tort, malpractice. The gravamen of this action is determinative of the statute of limitations to be applied and this statute cannot be obviated by pleading allegations purporting a contract. ( Schmidt v. Merchants Desp. Transp. Co., 270 N.Y. 287; Webber v. Herkimer & Mohawk St. R.R. Co., 109 N.Y. 311; Loehr v. East Side Omnibus Corp., 259 App. Div. 200, 287 N.Y. 670; Hermes v. Westchester Racing Assn., 213 App. Div. 147; Schlick v. New York Dugan Bros., 175 Misc. 182; Blessington v. McCrory Stores Corp., 305 N.Y. 140; Brick v. Cohn-Hall-Marx Co., 276 N.Y. 259; Pike v. Honsinger, 155 N.Y. 201; Gerber v. Thron, 262 App. Div. 839; Frankel v. Wolper, 181 App. Div. 485.) [308 N.Y. 545] [127 N.E.2d 331]

CONWAY, Ch. J. The question presented is whether the complaint states a cause of action in contract. If it does, the action is not barred by the Statute of Limitations. If it states a cause of action in tort for malpractice, it is barred by the two-year Statute of Limitations. (Civ. Prac. Act, § 50, subd. 1.) On that ground defendant has moved to dismiss the complaint and we accept plaintiff’s allegations as true. Those allegations are in substance as follows: Plaintiff employed defendant, a licensed physician and surgeon, for a compensation not to exceed $150 - to operate upon him for the purpose of removing a growth by fulguration - a procedure which would not involve entry through the abdominal wall by incision. He duly performed all the terms and conditions of the contract. Defendant agreed, as his part of the contract, to perform the operation in a good and workmanlike manner and promised to cure the plaintiff by removing the growth by the method indicated and, as part of the contract, promised that plaintiff would be cured in one or two days, could leave the hospital in that time and could immediately resume his occupation. Instead, in breach of the contract, defendant attempted in an unworkmanlike, unprofessional and unskilled manner to perform the operation by fulguration but as a result of his unskillfulness and his unworkmanlike procedure he twice punctured one of plaintiff’s organs and thus necessitated a major operation including the opening of the abdominal wall by incision. As a result plaintiff was hospitalized for approximately a month for postoperative treatment and the...

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    ...v. Proud (1961) 189 Kan. 6, 367 P.2d 61; Stewart v. Rudner (1957) 349 Mich. 459, 467--469, 84 N.W.2d 816, 822--823; Robins v. Finestone (1955) 308 N.Y. 543, 127 N.E.2d 330; Colvin v. Smith (1949) 276 App.Div. 9, 92 N.Y.S.2d 794, 'The elements of a cause of action for breach of contract are ......
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