Fisher v. Sydenham Hospital, Inc.

176 Misc. 7 | City of New York Municipal Court | 1941

Genung, J.

Action is brought by plaintiff for negligence against Sydenham Hospital and two nurses, who attended him, for the loss of false teeth while under treatment at hospital. Defendant hospital has interposed general denial and counterclaim for balance of eighty-five dollars and seventy-five cents for professional services rendered and materials furnished by the hospital.

Plaintiff claims that on May 7, 1940, he gave his dentures to the nurse, Miss White, to clean and keep for him, and the said dentures were not returned. Miss White denied that she had received the teeth, and there is no testimony that Miss Hunt ever received the teeth. On this question of fact, the court accepts the testimony of the nurses.

Assuming, however, that the nurse did receive the dentures and failed to return them, the defendant hospital is not liable. The nurses were engaged by the hospital as special nurses at the request of the plaintiff and were paid by the hospital and their wages collected from the plaintiff along with other charges. The nurses, therefore, were to be considered as independent contractors, and pot as employees of the hospital, and if negligence of the nurses had been established by the testimony, the hospital would not be liable for the loss of the dentures.

Defendants are entitled to dismissal of the complaint and Sydenham Hospital, Inc., is entitled to recover the sum of eighty-five dollars and seventy-five cents on the counterclaim. Five days’ stay.