260 A.D. 957 | N.Y. App. Div. | 1940
Order denying the defendant’s motion to dismiss the plaintiffs’ complaint pursuant to rule 107 of the Rules of Civil Practice, on the ground that the causes of action alleged in the complaint did not accrue within the time limited by law and are barred by the Statute of Limitations (Civ. Prac. Act, § 50), reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Under the facts alleged in the complaint, the defendant, a pharmacist, was practicing medicine as defined by subdivision 7 of section 1250 of the Education Law (as added by Laws of 1927, chap. 85), although not qualified or licensed as a physician. Recovery may be had in such an action as this only if the defendant’s treatment of the plaintiff fell short of the professional standards of skill and care prevailing among those who offer treatment lawfully. (Brown v. Shyne, 242 N. Y. 176.) The allegation in the complaint that the defendant “ failed to exercise due care, caution and prudence in the premises ” with injurious results, classifies this action as one in malpractice, against which the limitation of the statute (Civ. Prae. Act, § 50) has run. (Monahan v. Devinny, 223 App. Div. 547.) Lazansky, P. J., Hagarty, Carswell and Close, JJ., concur; Adel, J., dissents and votes to affirm on the authority of Isenstein v. Malcomson (227 App. Div. 66). [175 Mise. 415.]
