
    Claude L. Stage, Respondent, v. Michigan Central Railroad Company, Appellant.
    Fourth Department,
    January 11, 1922.
    Railroads — liability to servant for incompetency of physicians furnished — pleadings — sufficiency of complaint may be raised after expiration of twenty days from service thereof within which motion for dismissal may be made under Rules of Civil Practice, rule 106 — when failure to state grounds of objection to complaint in notice of motion for judgment on pleadings as required by Civil Practice Act, § 280, not material.
    The defendant, a railroad company, is not liable for the incompeteney of the physicians, surgeons, nurses and attendants furnished by it to the plaintiff, unless it was .negligent in selecting or furnishing the same, and therefore, the complaint which did not contain any allegation of negligence, is insufficient.
    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.
    The failure of the defendant to state in the notice of motion for judgment on the pleadings the grounds of its objection to the complaint, as required by section 280 of the Civil Practice Act, is not available on appeal, where it was not raised below and, furthermore, the order entered upon the plaintiff’s motion did not merely deny the motion, but specifically adjudged that the complaint does not state facts sufficient to constitute a cause of action.
    Appeal by the defendant, Michigan Central Railroad Company, from an order of the Supreme Court, made at the Steuben Trial Term and entered in the office of the clerk of the county of Steuben on the 15th day of November, 1921, denying defendant’s motion for judgment on the pleadings.
    
      Halsey Sayles, for the appellant.
    
      James 0. Sebring, for the respondent.
   Per Curiam:

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.  