ROBINS v. FINESTONE

CourtNew York Court of Appeals
Writing for the CourtCONWAY, Ch. J.
Citation127 N.E. 2d 330,308 N.Y. 543
Decision Date02 June 1955
PartiesLouis D. ROBINS, Appellant, v. Edward O. FINESTONE, Respondent.
308 N.Y. 543
127 N.E.2d 330

Louis D. ROBINS, Appellant,
v.
Edward O. FINESTONE, Respondent.

Court of Appeals of New York

Argued April 18, 1955.
June 2, 1955, decided


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...

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93 practice notes
  • Billings v. Sisters of Mercy of Idaho, No. 9382
    • United States
    • United States State Supreme Court of Idaho
    • January 24, 1964
    ...is negligence and not a breach of the contract of employment. While the contract rule is still used occasionally, Robins v. Finestone, 308 N.Y. 543, 127 N.E.2d 330 (1955), it is generally recognized as being more of a device than a valid rule of law. Note, 64 W.Va.L.Rev. 412 Appellants cont......
  • Burns, Jackson, Miller, Summit & Spitzer v. Lindner, AFL-CI
    • United States
    • United States State Supreme Court (New York)
    • March 31, 1981
    ...not been stated concedes for the purposes of such motion every fact pleaded and every inference that may be drawn. (Robins v. Finestone, 308 N.Y. 543, 127 N.E.2d 330 The court has considered the pleadings and all of the evidence presented not as a motion for summary judgment but on the ques......
  • Custodio v. Bauer
    • United States
    • California Court of Appeals
    • May 24, 1967
    ...(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 the makin......
  • Paver and Wildfoerster v. Catholic High School Ass'n
    • United States
    • United States Court of Appeals (New York)
    • February 19, 1976
    ...Corp., 259 App.Div. 200, 202--203, 18 N.Y.S.2d 529, 530--532, affd. 287 N.Y. 670, 39 N.E.2d 290; but cf., e.g., Robins v. Finestone, 308 N.Y. 543, 546, 127 N.E.2d 330, 331; Stitt v. Gold, 33 Misc.2d 273, 274, 225 N.Y.S.2d 536, 537, affd. 17 A.D.2d 642, 230 N.Y.S.2d 677 (contract to cure fou......
  • Request a trial to view additional results
96 cases
  • Burns, Jackson, Miller, Summit & Spitzer v. Lindner, AFL-CI
    • United States
    • United States State Supreme Court (New York)
    • March 31, 1981
    ...not been stated concedes for the purposes of such motion every fact pleaded and every inference that may be drawn. (Robins v. Finestone, 308 N.Y. 543, 127 N.E.2d 330 The court has considered the pleadings and all of the evidence presented not as a motion for summary judgment but on the ques......
  • Custodio v. Bauer
    • United States
    • California Court of Appeals
    • May 24, 1967
    ...(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 the makin......
  • Paver and Wildfoerster v. Catholic High School Ass'n
    • United States
    • New York Court of Appeals
    • February 19, 1976
    ...Corp., 259 App.Div. 200, 202--203, 18 N.Y.S.2d 529, 530--532, affd. 287 N.Y. 670, 39 N.E.2d 290; but cf., e.g., Robins v. Finestone, 308 N.Y. 543, 546, 127 N.E.2d 330, 331; Stitt v. Gold, 33 Misc.2d 273, 274, 225 N.Y.S.2d 536, 537, affd. 17 A.D.2d 642, 230 N.Y.S.2d 677 (contract to cure fou......
  • Billings v. Sisters of Mercy of Idaho, No. 9382
    • United States
    • United States State Supreme Court of Idaho
    • January 24, 1964
    ...is negligence and not a breach of the contract of employment. While the contract rule is still used occasionally, Robins v. Finestone, 308 N.Y. 543, 127 N.E.2d 330 (1955), it is generally recognized as being more of a device than a valid rule of law. Note, 64 W.Va.L.Rev. 412 Appellants cont......
  • Request a trial to view additional results

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