ROBINS v. FINESTONE
Decision Date | 02 June 1955 |
Parties | Louis D. ROBINS, Appellant, v. Edward O. FINESTONE, Respondent. |
Court | New York Court of Appeals Court of Appeals |
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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