
    Sidney V. Haas, Respondent, v. Edward E. Read, Appellant.
    (Supreme Court, Appellate Term,
    May, 1909.)
    Municipal Courts — Procedure: Appearance and failure to answer — What constitutes appearance: Costs. Physicians — Compensation — Measure of compensation.
    In an action in the Municipal Court of the city of New York where the pleadings are oral, the filing and service of a bill of particulars, signed by plaintiff’s attorneys whose general appearance is recognized by defendant’s attorneys and by the court, is a substantial compliance with section 332 of the Municipal Court Act requiring a written notice of appearance by the prevailing party in order to entitle him to costs.
    A physician attending defendant’s child as the defendant’s family physician is not entitled to receive compensation at the rate of a specialist in children’s diseases; and, Where he has previously charged at a certain rate for his visits, he will he restricted to such rate. ■ .
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, fifth district, borough of Manhattan.
    Forster, Hotaling & Klenke, for appellant.
    Franc, Nenman & Newgass, for respondent.
   Per Curiam.

Plaintiff sued to recover three hundred dollars for services as a physician, rendered between October, 1907, and January, 1908. He resided next door to the defendant, whose wife and child he eorcededly attended until dismissed by the calling in of another physician. He sent his bill for three hundred dollars. Defendant retained it. Three months thereafter, plaintiff insisting upon its payment, defendant refused on the ground that it was exorbitant. On the trial plaintiff testified to fifty-seven visits of the value of five dollars each. Defendant conceded forty-Awo visits, denied any others, and claimed the value of those made to be two or three dollars each. He placed in evidence a bill rendered to Mm by plaintiff for one visit made in April, 1907, in attendance upon Mrs. Read, for wMch he was charged and was paid four dollars. Defendant’s proofs as to the number of visits lacked probative force, while plaintiff was corroborated by written, memoranda made at the time of each visit. Plaintiff called Dr. Holt, a specialist in children’s diseases, with whom he consulted twice while attending defendant’s child, to prove the value of plaintiff’s services at five dollars per visit; but the exceptions to that testimony were well taken and it must, therefore, be disregarded. Defendant offered no evidence of other physicians as to said value, so that plaintiff’s testimony on that subject stands practically unchallenged. It may be assumed from the record that plaintiff’s attendance was as a family physician, not as a specialist in children’s diseases. It would also seem that, by his previous charge of four dollars, he had established with the defendant his fee per visit. The trial court found fifty-seven visits were made at five dollars each, and gave judgment for two hundred and eighty-five dollars. This should be reduced to two hundred and twenty-eight dollars. The trial court also awarded twenty-four dollars and forty-one cents costs, to which appellant objects on the ground that, by section 332 of the Municipal Court Act, no costs are allowed to the prevailing party, unless his pleading is verified, or he has filed a written notice of appearance. The pleadings here are oral, and no written appearance was filed by either party. The record, however, shows the filing and service of a bill of particulars, signed by plaintiff’s attorneys, whose general appearance was recognized by defendant’s attorneys and by the court; and thus a substantial compliance with that section appears.

The judgment should be modified by reducing the same to the sum of $252.41 and, as modified, affirmed, without costs of this appeal to either party.

Present: Dayton, Seabury and Lehman, JJ.

Judgment modified by reducing same to $252.41 and, as modified, affirmed, without costs of this appeal to either party.  