Burrell v. Preston — 26 N.Y. St. Rep. 489

Majority

p. 489

Mary Burrell, App’lt, v. Wooster B. Preston, Resp’t.

(Supreme Court, General Term, Fifth Department,

Filed October 19, 1889.)

Headnote

Limitation — Negligence — Existence op contract relation between PARTIES DOES NOT EXTEND PERIOD OP LIMITATION.

An action for personal injuries arising from negligence or unskillfulness of physicians must be brought within three years. The fact that his services were rendered under a contract does not extend the period of limitation.

Appeal from a judgment entered upon a non-suit directed at the Livingston circuit.

Action to recover of defendant, who is a physician and a surgeon, for alleged malpractice in negligently and unskillfully

p. 490

treating the plaintiff for a fracture of a bone in her right forearm near the wrist, and a dislocation of the wrist, whereby she was-obliged to employ another surgeon and have the bone re-broken.

She testified, that immediately after the accident, on November 2, 1881, she called on the defendant to treat the injury; that he undertook and promised to do so; that he so unskillfully and negligently performed the work that she lost the entire use of her arm and hand, suffered great pain, and was obliged to undergo-another operation at great expense of time and money. On plaintiff’s evidence the court, granted a non-suit on the ground that the action was barred by the statute of limitations.

J. A. Van Derlip, for app’lt; Fred. W. Noyes, for resp’t.

The case contains a judgment and notice of appeal therefrom, although it is also stated that the exceptions, taken at the trial were ordered to be heard at the general term in. the first instance. Under these .circumstances we must treat as controlling in respect to the practice the judgment and the notice-of appeal.

The action is for damages for personal injuries received by the plaintiff through the negligence of the defendant. The answer,, among other things, alleges that the action was not brought within the three years next succeeding the alleged injuries, which were received in the month of November, 1881, and that consequently the action is barred by the three years statute of limitations.

The counsel for the appellant argues, quite against the plain utterances of the Code of Civil Procedure, as it seems to us, that, inasmuch as the relation existing between the patient and the doctor was by virtue of a contract existing betwe'en them, on the one-side to render services, and on the other to pay for the same, the six year statute of limitations is alone applicable. It is true, that negligence in this, as in all other cases arising incidentally between parties who have contract relations with each other, is in some sort a breach of contract; but this by no means relieves the parties, from the operation of the provisions of the statutes of limitations which are designed to limit the right of action in cases of negligence to three years, whether the negligence was caused by a party-having any duty to perform to the other or not. Sub-division 5 of the three year statute, Code, § 383, is: “An action to recover damages for a personal injury resulting from negligence.” It contains no qualification or limitation of cases where the negligence-is caused by a person who has agreed by contract to do a certain, thing in behalf of the party injured.

The judgment should be affirmed.

Barker, P. J., and Dwight, J., concur.