
    Louise E. Henzi, Appellant, v. Nessim D. Benezra, Respondent.
    Supreme Court, Appellate Term, First Department,
    November 16, 1936.
    
      Holland & Armstrong [Jefferson Armstrong of counsel], for the appellant.
    
      Lorenz J. Brosnan [Morgan J. Burke,- Jr., of counsel], for the respondent.
   Pee Cubiam.

Plaintiff was operated on by defendant. She was wholly or partly under anesthesia for several hours during which time her adenoids were removed. After the operation she was returned to her bed in the hospital. Twenty-four hours later she noticed a tooth was injured. There is expert opinion evidence that the injury was of traumatic origin. Plaintiff claims that the rule of res ipsa loquitur applies and that she established a prima facie case of negligence on the part of defendant, the operating physician.

The doctrine of res ipsa loquitur is based on the consideration that control of the thing that produced the injury is exclusively with defendant. (Stater v. Barnes, 241 N. Y. 284.)

During a large part of the period between the administration of the ether and the discovery of the injury, plaintiff was not under defendant’s care but that of the hospital. Under such circumstances plaintiff failed to establish defendant’s liability. Judgment affirmed, with twenty-five dollars costs.

All concur. Present — Ltd on, Levy and Callahan, JJ.  