Burrell v. Preston — 61 N.Y. Sup. Ct. 70

Majority

p. 70

MARY BURRELL, Appellant, v. WOOSTER B. PRESTON, Respondent.

Headnote

Statute of limitations, relating to personal injuries occasioned by negligence, applicable where a contract relation exis ts Code of Civil Procedure, sub. 5 of see. 383.

The provisions of subdivision 5 of section 383 of the Code of Civil Procedure are applicable to an action for the recovery of damages for personal injuries occasioned by negligence, although at the time of the occurrence a contract relation existed between the parties to the action, the plaintiff being a patient of the defendant, a doctor.

p. 71

Appeal by tbe plaintiff from a judgment in favor of tbe defendant dismissing the plaintiff’s complaint, rendered at tbe Livingston Cb’cuit, November, 1888, and entered in tbe office of tbe clerk of Livingston county on tbe 15th day of December, 1888.

Tbe action was brought to recover damages alleged to have been sustained by tbe plaintiff by reason of tbe alleged malpractice of tbe defendant, a physician and surgeon, occurring in tbe treatment of tbe plaintiff by tbe defendant in bis professional capacity.

J. A. Van Derbvp, for tbe appellant.

Frederick W. Aboyes, for tbe respondent.

Tbe case contains a judgment and notice of appeal tberefrom} although it is also stated that tbe exceptions taken at tbe trial were ordered to be beard at tbe General Term in tbe first instance. Under these circumstances, we must treat as controlling, in respect to tbe practice, tbe judgment and tbe notice of appeal.

Tbe action is for damages for personal injuries received by tbe plaintiff through tbe negligence of tbe defendant. Tbe answer,, among.otber things, alleges that tbe action was not brought within the, three years next succeeding tbe alleged injuries which were received in tbe month of November, 1881, and that, consequently, tbe action is barred by tbe three-year statute of limitations. Tbe counsel for tbe appellant argues, quite against tbe plain utterance of tbe Code of Civil Procedure, as it seems to us, that, inasmuch as tbe relation existing between tbe patient and tbe doctor was by virtue of a contract existing between them on tbe one side to render services, and on tbe other to pay for the same, tbe 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 bave contract relations with each other, is in some sort a breach of contract; but this by no means relieves tbe parties from tbe operation of tbe provisions of tbe statutes of limitations, which are designed to limit tbe right of action in case of negligence to three years, whether tbe negligence was caused by a party having any duty to perform to tbe other or not. Subdivision 5 of tbe three-year statute (Code, § 383) is: “An action to recover damages for a

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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., concurred.

Judgment affirmed.