Opinion
March 21, 1941.
Appeal from Supreme Court of New York County, NOONAN, J.
J.M. Fishback, for the appellant.
Sidney Jarcho of counsel [ Cohen Jarcho, attorneys], for the respondent.
Present — MARTIN, P.J., UNTERMYER, DORE, COHN and CALLAHAN, JJ.
The complaint alleges that the plaintiff was a patient at the defendant's hospital, where she was operated upon and there was removed from her the dead body of a calcified child. In the first cause of action, not involved on this appeal, the plaintiff seeks damages caused by the defendant's interference with the plaintiff's right to receive and bury the body of her child.
The second cause of action alleges that on several occasions the plaintiff demanded the body for the purpose of burial, but that the defendant refused to deliver it to her. The plaintiff accordingly demands possession of the body of her still-born child. Whether such a cause of action is maintainable in equity rather than at law need not be decided on this appeal for we have frequently held that that question will not be decided on a motion to dismiss the complaint under rule 106 of the Rules of Civil Practice. ( Society Milion Athena, Inc., v. National Bank of Greece, 253 App. Div. 650, and cases cited.)
The order should be reversed, with twenty dollars costs and disbursements, and the defendant's motion should be denied, with leave to the defendant to answer within ten days after service of order on payment of said costs.
Order unanimously reversed, with twenty dollars costs and disbursements, and the motion denied, with leave to the defendant to answer within ten days after service of a copy of order with notice of entry, on payment of said costs.