72 N.Y.S. 158 | N.Y. App. Div. | 1901
The plaintiff sued to recover for his services rendered as physician and surgeon to the defendant’s wife, and recovered a verdict of $275. After an examination of the patient the plaintiff told the defendant that a surgical operation for an internal trouble was necessary, whereupon it was agreed between them that the plaintiff would perform the operation for $75. The plaintiff testified that a further examination, a few days later, revealed that the first diagnosis was erroneous; that the condition of his patient was more grave than first supposed; that the operation first suggested was not necessary, but that a different and more severe operation was required, which, unlike the former, jeopardized life, and that he told-all these things to the defendant, who consented to the operation then advised, but that nothing was said between them upon the-subject of the fee.
I think that Gaynor, J., properly submitted to the jury the question whether the plaintiff superseded the original agreement based upon the first examination, and that the verdict should not be disturbed.
The.learned justice who presided at the trial states in his opinion that the testimony offered to describe the ailment and the particulars •of the operation were excluded under objection based on section 834 •of the Code of Civil Procedure, but the record fails to show this. .1 am of opinion, however, that there was evidence sufficient upon which to base the verdict rendered, because there is proof in the record of an operation with the attendance of four physicians and •six nurses — an operation severe in character, two and a half hours in duration, which required the knife, and which was followed by. many daily visits. It is also insisted that the plaintiff cannot sue because he has failed to comply with chapter 513 of the Laws of 1880. It appears that he came into the State in 1879, and that on ■September 25, 1880, he complied with section 2 of the act. The •statute Went into effect on October 1, 1880, and, therefore, the plaintiff was not within the provisions of section 4 thereof, inasmuch as it is not retroactive;
The learned counsel for the respondent submits a transcript from the dockets'of judgments, showing a satisfaction of the judgment in this action,- and insists that, therefore, the appellant is out of ■court. But as I do not so understand the law (Hayes v. Nourse,
The judgment and order should be affirmed, with costs,
Goodrich, P. J., Woodward, Hirschberg and Sewell, JJ., concurred.
Judgment and order affirmed, with costs.'