
    Richard Degnan, Resp’t, v. Walter Ransom, App’lt.
    
      Supreme Court, General Term, Fifth Department,
    
    
      Filed December 27, 1894.)
    
    Evidence—Malpract.ce.
    Where, in an action for malpractice, the plaintiff has not alleged or offered to prove want of skill on the part of the defendant, the latter cannot prove a reputation for a high degree of skill in his profession.
    Appeal from an order granting plaintiff’s motion for a new trial, after a verdict in favor of defendant at the circuit
    
      D. E. Brong, for app’lt; Wheldon & Ryan, for resp’t.
   Dwight, P. J.

The action was for malpractice of a surgeon. The complainant alleged negligence and unskillfulness on the part of the defendant in the treatment of the case. There was no allegation nor was evidence offered by the plaintiff to show, by general reputation or otherwise, that the defendant lacked the ordinary and competent skill which belongs to his profession. The allegations' and proofs on the part of the plaintiff, so far as skill of the defendant was concerned, were confined to the question of the degree of skill employed in the actual treatment of the plaintiff's case. But, when the defendant had the case, he was permitted to introduce the evidence of witnesses to the effect that he was generally reputed and considered to possess a high degree of skill in his profession. The evidence was- received under the objection and exception of the plaintiff, and, a verdict having been rendered for the defendant, that exception was the ground on which the motion for a new trial was granted.

We think that the admission of the evidence was error, and that the motion for a new trial was properly granted on that ground. In opposing this conclusion the appellant relies upon the authority of Carpenter v. Blake, 50 N. Y. 696, where judgment for the plaintiff was recovered because the judge at the circuit said in his charge to the jury :

“I suppose it is entirely immaterial to the inquiry before you whether the defendant, when he undertook the reduction of this dislocation, was or was not reputed to be, or was not, a skillful surgeon. The question is, did he bring to the treatment of this particular case the degree of skill to which I have referred ?”

The language here quoted is found in the report of the case at general term (60 Barb. 490, 516), where the charge was unanimously upheld. There is only a brief memorandum of the decision of the case in the court of appeals [supra), and from the memorandum it appears that the objection to the charge, above mentioned, was sustained by only a majority of one in that court. The authority of that decision is therefore not to be extended beyond the limits fixed by the particular case, and that was a case where, as appears from tbe report in 60 Barb, supra, the. complaint alleged that the defendant “represented himself to be * * * a scientific, skillful, and competent physician and surgeon,” and that the plaintiff, “by the ignorant, unskillful, careless, and negligent treatment by the defendant, was greatly damaged,” etc. This allegation seems to have been regarded as putting in issue the general skill and intelligence of the defendant, and to have justified the introduction of evidence of his general character in that respect. But by that particular allegation the case of Carpenter v. Blake is distinguished from the case at bar. Here is no such allegation. How ignorance is.not charged, and unskillfulness only in the treatment of the particular case. It is a little difficult to see, on principle, how the general character of the surgeon can ever be material to the inquiry whether he has been guilty of malpractice in a particular case, because it is certain that, though he be the merest pretender to surgical skill,—the veriest quack,—yet if, by chance, he treats the particular case correctly, he is not guilty of malpractice: and, equally, though he be a master in his profession, yet if, through neglect to apply his skill in the partir ’or case, he treats it improperly, the patient may have his action. However, we concede the authority of Carpenter v. Blake within its limitations, but do not find it, necessarily, to include the case in hand. Upon the pleadings and proof in this case, we think the motion for a new trial was properly granted, and the order should be affirmed.

All concur.

Order for new trial, appealed from, affirmed, with costs to abide the event.  