Opinion
June 22, 1959
In an action to recover damages for personal injuries against a private hospital and two doctors, the appeal, as limited by appellant's brief, is from an order granting respondent's motion to dismiss the hospital's cross complaint on the ground that it does not state facts sufficient to constitute a cross complaint (Rules Civ. Prac., rule 106, subd. 4). Order reversed, with $10 costs and disbursements, and motion denied. While the allegations of the amended complaint charge negligence against the hospital and the doctors, paragraph "Tenth" clearly shows that the negligence charged consisted of failure to use proper skill in the treatment, care and diagnosis of plaintiff's injuries. This can only mean the acts of the doctors. Moreover, the cross complaint alleges that plaintiff was their private patient, and that the hospital was in no way responsible for their acts. Under the circumstances, the hospital was not a joint tortfeasor in pari delicto with the doctors. The alleged negligence, if any, on the part of the hospital was passive, whereas the negligence, if any, on the part of the doctors was active and primary. We are therefore of the opinion that the cross complaint was sufficient. ( Tipaldi v. Riverside Mem. Chapel, 273 App. Div. 414, affd. 298 N.Y. 686; McFall v. Compagnie Mar. Belge [ Lloyd Royal] S.A., 304 N.Y. 314.) Wenzel, Acting P.J., Beldock, Murphy, Ughetta and Kleinfeld, JJ., concur.