Opinion
September 26, 1963
Order, entered on June 27, 1962, unanimously reversed on the law and the motion to strike the first affirmative defense as sham denied, without costs. It appears that there is an issue as to whether the bills received by plaintiff were authorized by defendant doctor or were sent out without his approval as a matter of hospital routine. If the latter, coupled with the absence of any payment, there would be a serious issue as to whether the services were performed "without receiving compensation" (General Municipal Law, § 50-d). If it be assumed that the original relationship was as a charity patient but that bills were sent pursuant to the permission given by section 585 of the New York City Charter, there is also a question as to whether or not this fact changes the original relationship and so obviates the necessity for notice. We do not pass on this question in the absence of the full development of the facts in regard to it.
Concur — Botein, P.J., Breitel, Rabin, Eager and Steuer, JJ.