Elizabeth Wade, Respondent, v. The City of Mount Vernon, Appellant

Elizabeth Wade, Respondent, v. The City of Mount Vernon, Appellant. Second Department, January 24, 1908. Negligence — damage — defendant not liable for malpractice of plaintiff’s physician. In an action to recover for personal injuries, it is error to charge that the plaintiff may recover for pain, suffering and injury caused by a mistake made by her . doctor in improperly setting a broken bone, and that she may recover the additional expense caused thereby, provided she used reasonable care in selecting her physician. ■ . Appeal by the defendant, The City of Mount Vernon, from a judgment of the. County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 23d day of January, 1907, upon the verdict of a jury for $2,000, and also from an" order entered in said clerk’s office on the 23d day of January, 1907, denying the' defendant’s • motion for a new trial made upon the minutes. David Swits, for the appellant. Frcmh A. Bennett, for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The plaintiff fell on a.sidewalk of the defendant by reason, as the jury have found, of a dangerous accumulation of ice, and obtained a judgment. It has to be reversed on account of the persistence of the learned trial Judge in charging that the plaintiff was entitled to recover damages for any pain, suffering and injury' caused her by any mistake made by her doctor by the improper setting of her broken bone, and also for the additional expense caused thereby, provided she used reasonable care in selecting her doctor. The defendant is not liable for the injury and damages caused by the-malpractice of the doctor. The plaintiff can only recover for that once, i. e., in an action against the doctor. The judgment is reversed. Jenks, Hookes, Rich and Millee, JJ., concurred. Judgment and order of the County Court of Westchester county . reversed and new trial ordered, costs to abide the event.