
    Levantia S. Carpenter, Respondent v. Zara H. Blake Appellant.
    In an action against a surgeon for malpractice, the question as to whether or not he is skillful in his profession is one of the material issues. If he has not competent skill, he is censurable for holding himself out as possessing it, and is strictly accountable for the consequences of his acts; and having adopted a process which was not successful, to the exclusion of one which might, and probably would have proved so, he is not entitled to the benefits which would inure to the skillful surgeon from an. error of judgment, or mistake in the appliances and means at command of the expert.
    Accordingly, held (Church, Oh. J., Psckham and Grover, JJ., dissenting), that a charge to the jury that it was immaterial whether the defendant was or was not reputed to be, or was or was not a skillful surgeon, was error.
    (Argued June 14, 1872;
    decided December 24, 1872.)
    
      Appeal from judgment of the General Term of the Supreme Court in the fourth department, affirming a judgment in favor of plaintiff entered upon a verdict.
    The action was brought against defendant, as a surgeon, for malpractice, in treating a dislocated elbow joint. Evidence was given upon the part of defendant tending to show he was reputed to be and was a skillful surgeon.
    The court charged in substance that it was entirely immaterial to the inquiry whether defendant, at the time he undertook the reduction of the dislocation, was or was not reputed to be, or was or was not a skillful surgeon. Held, error (Church, Ch. J., Peckham and Grover, JJ., dissenting); various other questions were discussed in the prevailing opinion, but were not agreed to by a majority of the court.
    
      Henry R. Selden for the appellant.
    
      8. JD. Faulkner for the respondent.
   Allen, J.,

reads opinion for reversal and new trial.

Eolger, Rapadlo and Andrews, JJ., concur upon the first ground discussed.

Peckham, J., reads opinion for affirmance. Church, Ch. J., and Grover, J., concur.

Judgment reversed.  