4 A.D.2d 874 | N.Y. App. Div. | 1957
The single cause of action states that respondent entered into a contract in connection with entering appellant’s hospital for surgery, and agreed to pay appellant for the use of its facilities, together with necessary, competent and capable help and nurses; that appellant was under a duty to use care in the choice of said help and nurses but breached that duty, and that appellant’s said breach of duty caused respondent’s damages. The appeal is from an order denying a motion to dismiss the complaint on the ground that the cause of action did not accrue within the time limited by law for the commencement of an action thereon (Rules Civ. Prae., rule 107, subd. 5). Order reversed, with $10 costs and disbursements, and motion granted, without costs. It is immaterial whether the action be regarded as ex contractu or ex delicto. Since appellant’s common-law duty and its implied contractual obligation were one and the same, “ the suit, however labeled, is one in negligence, at least for time limitation purposes" (Blessington v. McCrory Stores Corp., 305 N. Y. 140, 148; Webber v. Herkimer & Mohawk St. B. B. Co., 109 N. Y. 311; Hermes v. Westchester Bacing Assn., 213 App. Div. 147; Loehr v. East Side Omnibus Corp., 259 App. Div. 200, afld. 287 N. Y. 670). Accordingly, the three-year period of limitation (Civ. Prae. Act, § 49, subd. 6) applies. Nolan, P. J., Wenzel, Beldock, Ughetta and Kleinfeld, JJ., concur.