Majority
In an action by a patient, Josephine T. Sheridan, against her physician, to recover damages for breach of contract to effect, by surgery, a permanent cure of spinal pains, defendant appeals from an order of the Supreme Court, Kings County, dated September 30, 1959, which denied his motion: (1) to amend his answer by pleading the Statute of Frauds, and (2) for “ judgment on the pleadings ” pursuant to rule 107 (subd. 7) of the Rules of Civil Practice; or, in the alternative, (3) to “modify the complaint” by reducing the damages claimed from $125,000 to $9,029.63. It appears that the patient died on August 24,1960, while the motion was pending. On January 16, 1961, during the pendency of the appeal, this court made an order, pursuant to stipulation, substituting the patient’s administratrix as plaintiff-respondent in the action. Order affirmed, with $10 costs and disbursements. No opinion. Beldock, Acting P. J., Ughetta, Kleinfeld, Christ and Pette, JJ., concur.