
    Emil Schopen, Resp’t, v. Homer R. Baldwin, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 10, 1894.)
    
    Physicians—Seevices.
    Under an answer putting in issue the value of the services of a physician, it is competent to prove unskillful treatment, as affecting such value.
    Appeal from a judgment, entered on a verdict in favor of plaintiff.
    
      Carlton B. Pierce, for app’lt; J. Hampden Dougherty, for resp’t.
   Cullen, J.

This is an appeal from a judgment for the plaintiff entered on the verdict of the jury. The action is brought by a physician to recover for professional services, and the complaint presents the claim in a double aspect, both for an agreed price, and also on a quantum meruit. The answer admits the services, but denies a special contract as to price, and also denies the value alleged ; averring that the services were not worth more than the sum of $1,000, more than which sum had been paid to the plaintiff. The court submitted the claim to a jury in both aspects, and, as the jury found a verdict for a sum less than that claimed, it may be assumed that the plaintiff recovered on a quantum meruit.

There is but one substantial objection raised on this appeal. In the cross-examination of the plaintiff, he was asked whether the bones of the patient’s forearm still protruded. Objection being made to the question, the counsel for defendant stated that he would show that the plaintiff’s treatment of the arm was not proper. The court held that there was no defense of the kind pleaded, arid excluded the evidence. The question is therefore presented whether, under an answer putting in issue the value of the services of the physician, it is competent to prove unskillful treatment, as affecting such value. It seems at one time, in this state, to have been doubtful whether malpractice could be proved under the general issue. In Runyan v. Nichols, 11 Johns. 546, Judge Van Hess first thought that the evidence was inadmissible under that plea, but on reflection doubted the correctness of his opinion, and the decision finally proceeded on the ground that notice should have been given. In Sill v. Rood, 15 Johns. 230, the case of Runyan v. Nichols was distinguished. In Gleason v. Clark, 9 Cow. 57, it was held that malpractice, if given in evidence to entirely defeat the plaintiff’s claim, was admissible under the general issue without notice; if merely to reduce the claim, then notice should be given. In Blair v. Bartlett, 75 N. Y. 150, Judge Folger states the tenor of these authorities, without declaring the rule under the Code, as the case did not involve the question. In Chatfield v. Simonson, 92 N. Y. 209, it was held that proof of misconduct of the plaintiff as attorney for the defendant was admissible under a general denial as a bar to the action. The result of these authorities is that, had the defendant denied any value to the plaintiff’s services, the evidence would have been clearly admissible. But the defendant admitted in his answer that the services were valuable. Does that concession necessarily bar any claim of improper treatment or malpractice ? It is settled law that a recovery by a physician for services bars an action by the patient for malpractice. Blair v. Bartlett, supra; Gates v. Preston, 41 N. Y. 113 ; Bellinger v. Craigue, 31 Barb. 534. In these cases are to be found statements that the recovery to any extent is inconsistent with malpractice. It is said by Judge Folger in Blair v. Bartlett, in speaking of the effect of a recovery for services, as establishing their value:

“But, if of value, they could not have been useless; and, if of use, they could not have been harmful; and, if not harmful, there could not have been mala praxis in the performance of them."

If this is to be considered as asserting that any malpractice is inconsistent with the recovery .for any amount, it can hardly be a correct exposition of the. law. If there can be no malpractice that will merely reduce the recovery, not defeat it, why the old rule of pleading, that notice of such malpractice must be given with a plea .of the general issues ? The contract of a physicians is like other contracts. It is usually, an entire contract, but so are many others. A recovery on ‘the contract necessarily bars a cross action for its nonperformance. This is the case with all entire contracts, except where there are independent covenants,' such as warranties, which survive the contract. Still in all suits on entire contracts the defendant may recoup damages for unskillful performance. If the plaintiff had relied only on the specific contract set forth in the complaint, the issues would have then been limited to the existence of a contract and its performance, but he also claimed to recover on a quantum, meruit;, that is, the Sum that his services were fairly and reasonably worth. The defendant denied that the services were of the value claimed, and this raised an issue as to such value. Under this issue it would seem competent for the defendant to show that the services were unskillfully performed, as well as for the plaintiff to show that they displayed great skill. These facts would affect the value of the services. Such evidence would be competent in other actions on a quantum meruit, either for services or goods sold (see note to Runyan v. Nichols, supra); and, unless we can distinguish actions by physicians or lawyers from other actions for services, the same rule must obtain. The judgment and order denying a new trial should-be reversed, and a new trial ordered ; costs to abide event.

A11 concur.  