Opinion
March 15, 1938.
H.W. Okun, for the plaintiff.
L.J. Brosnan, for the defendants.
This is a motion to dismiss a complaint against defendant Cassola pursuant to subdivision 7 of rule 107 of the Rules of Civil Practice. Plaintiff was injured in an automobile accident in May, 1937, and taken to Columbus Hospital for treatment. Defendant Cassola, as physician there, treated him from May to August, 1937. In November, 1937, plaintiff released the one who was responsible for his injuries in the accident for the sum of $2,000. The hospital claimed a lien on the fund, and $370 was withheld on account of this lien, pending disposition of the hospital's claim, the balance being paid. The release did not run to Cassola nor did it contain a reservation of any right to proceed against another party. In January, 1938, the plaintiff commenced this suit. He alleges as a first cause of action malpractice of Cassola; a second cause of action against Columbus Hospital, and a third cause against Cassola for breach of contract in not skillfully performing his agreement to treat plaintiff.
The motion is granted as to the cause in malpractice. "Satisfaction by the original wrongdoer of all damages caused by his wrong bars action against the negligent physician who aggravated the damage." ( Milks v. McIver, 264 N.Y. 267.) This rule, which releases Cassola as a technical joint tort feasor, cannot be construed to release him from the contract claim contained in the third cause. The motion to dismiss the third cause is denied.