Opinion
January 11, 1922.
Halsey Sayles, for the appellant.
James O. Sebring, for the respondent.
The defendant is not liable for the incompetency of the physicians, surgeons, nurses and attendants furnished by it to the plaintiff, unless it was negligent in selecting or furnishing the same. ( Laubheim v. De K.N.S. Co., 107 N.Y. 228; Rosenberg v. N.Y.C.R.R. Co., 180 App. Div. 79; Leone v. Booth Steamship Co., Ltd., 189 id. 185.)
There is no allegation in the complaint that the defendant was negligent in this regard, nor any allegation whatever upon which actionable negligence may be predicated against it.
As regards the questions of practice, it does not appear that any such questions as are now raised were raised at the Special Term. Rule 106 of the Rules of Civil Practice, which provides that the motion for judgment dismissing the complaint may be made within twenty days after service of the complaint, does not prevent the defendant after that time from raising the question that the complaint does not state facts sufficient to constitute a cause of action. (Civil Practice Act, § 279; Rules of Civil Practice, rule 112.)
As to the objection that the notice of motion or order to show cause did not state the grounds of the objection to the complaint, as required by section 280 of the Civil Practice Act, it is enough to say, as before stated, no such objection was raised at Special Term, and, furthermore, the order entered upon the plaintiff's motion did not merely deny the motion, but specifically adjudged that the complaint does state facts sufficient to constitute a cause of action.
While the order should be reversed, the plaintiff should be permitted to amend his complaint if so advised. (Civil Practice Act, § 283.)
All concur.
Order reversed, with ten dollars costs and disbursements, and judgment directed for defendant upon the pleadings, with costs and ten dollars costs of the motion, with leave to the plaintiff to serve an amended complaint within twenty days upon payment of the costs of the motion and of this appeal. If such amended complaint is so served and the costs paid, the motion for judgment is denied.