
    Burrell v. Preston.
    
      (Supreme Court, General Term, Fifth Department.
    
    October 19, 1889.)
    Limitation of Actions—Negligence—Physicians.
    An action against a physician for negligent treatment of a patient is “an action to recover damages for a personal injury resulting from negligence, ” within Code Civil Proc. N. Y. § 383, subd. 5, providing that such actions must be brought within three years, though the physician was treating the patient under a contract.
    Appeal from circuit court, Livingston county.
    Action by Mary Burrell against Wooster B. Preston. A nonsuit was directed, and plaintiff appeals.
    Argued before Barker, P. J., and Dwight and M a comber, J,T. •
    
      J. A. VanDerlip, for appellant. Fred W. Noyes, for respondent.
   Macomber, J.

The case contains a judgment and notice of appeal therefrom, although it is also stated that the exceptions taken at the trial were ordered to be heard at the general term in the first instance. Under these circumstances we must treat as controlling in respect to the practice the judgment and the notice of appeal. The action is for damages for personal injuries received by the plaintiff through the negligence of the defendant. The answer, among other things, alleges that the action was not brought within the three years next succeeding the alleged injuries, which were received in the month of ^November, 1881, and that consequently the action is barred by the three-year statute of limitations. The counsel for the appellant argues, quite against the plain utterances of the Code of Civil Procedure, as it seems to us, that, inasmuch as the relation existing between the patient and the doctor was by virtue of a contract existing between them, on the one side to render services, and on the other to pay for the same, the six-year statute of limitations is alone applicable. It is true that negligence in this, as in all other cases arising incidentally between parties who have contract relations with each other, is in some sort a breach of contract; but this by no means relieves the parties from the operation of the provisions .of the statutes of limitations, which are designed to limit the right of action in case of negligence to three years, whether the negligence was caused by a party having any duty to perform to the other or not. Subdivision 5 of the three-year statute (Code, § 383) is: “An action to recover damages for a personal injury resulting from negligence.” It contains no qualification or limitation of cases where the negligence is caused by a person who has agreed by contract to do a certain thing in behalf of the party injured. The judgment should be affirmed. All concur.  