Emma Colvin sued Walter J. Smith, a physician and surgeon, for breach of a special contract to remove a cataract from plaintiff's eye.

         From an order of the Supreme Court, Oneida County, Special Term, Abram Zoller, J., 94 N.Y.S.2d 98, entered in the office of the Madison County Clerk December 29, 1948, denying defendant's motion for judgment dismissing the complaint pursuant to Rules of Civil Practice, rule 107, subds. 4, 5, defendant appealed.

         The Appellate Division, Deyo, J., affirmed the order, holding that the action was not barred by plaintiff's pending appeal from a judgment dismissing her previous action against defendant for malpractice, as the two causes of action were not the same.

         See also 275 A.D. 1018, 91 N.Y.S.2d 713.

          Martin & Clearwater, New York City (John J. Deluca, New York City, Thomas H. Clearwater, New York City, of counsel), for appellant.

          Joe Schapiro, Hamilton, for respondent.

          Before FOSTER, P. J., and HEFFERNAN, BREWSTER, DEYO, and BERGAN, JJ.

         DEYO, Justice.

         The defendant, a physician and surgeon, was unsuccessful in his attempt to remove a cataract from the plaintiff's eye. An action for malpractice ensued, which resulted in the dismissal of the plaintiff's complaint at the close of her case. This action, based on the alleged breach of a special contract for the removal of the cataract followed. An appeal is now pending from the previous judgment.

          A doctor and his patient are at liberty to contract for a particular result, and if that result be not attained, the plaintiff has a cause of action for breach of contract. Keating v. Perkins, 250 A.D. 9, 293 N.Y.S. 197. This cause of action is entirely separate from malpractice, even though they both, as here, may arise out of the same transaction. Conklin v. Draper, 229 A.D. 227, 241 N.Y.S. 529,affirmed 254 N.Y. 620, 173 N.E. 892; Monahan v. Devinny, 223 A.D. 547, 229 N.Y.S. 60; Frankel v. Wolper, 181 A.D. 485, 169 N.Y.S. 15. The two causes of action are dissimilar as to theory, proof and damages recoverable. Malpractice is predicated upon the failure to exercise requisite medical skill and is tortious in nature. The action in contract is based upon a failure to perform a special agreement. Negligence, the basis of the one, is foreign to the other. The damages recoverable in malpractice are for personal injuries, including the pain and suffering which naturally flow from the tortious act. In the contract action they are restricted to the payments made and to the expenditures for nurses and medicines or other damages that flow from the breach thereof. Therefore, the cause of action previously asserted which has been dismissed, is not the same cause of action herein alleged.

         The order should be affirmed with $10 costs to the plaintiff-respondent.

         Order affirmed, with $10 costs to plaintiff-respondent.