Clifton Springs Sanitarium Co. v. Devoyst

136 Misc. 293, 240 N.Y.S. 729, 1930 N.Y. Misc. LEXIS 1128

• Court: New York Supreme Court
• Decided: March 3, 1930
• Status: Published

Opinion

Rodenbeck, J.

The action is brought to recover for medical and other services rendered by the plaintiff to defendant’s wife. Defendant wishes to interpose a general denial to plaintiff’s claim. This pleading permits of the defense of misconduct. (Harrell v. Bonfils Improvement Co., 17 App. Div. 405, 407.) A recovery by plaintiff would bar an action by defendant for malpractice. (Schopen v. Baldwin, 83 Hun, 234; Blair v. Bartlett, 75 N. Y. 150; Gates v. Preston, 41 id. 113.) An action for medical services may be met by the defense. that the services were not performed, or performed so unskillfully as not to be worth anything, and a counterclaim for malpractice may be interposed. (Elebach v. Weed, 29 Misc. 754; Boom v. Reed, 69 Hun, 426.) The defendant should have an opportunity to defend the plaintiff’s claim, and sufficient excuse for his failure to do so appears from his affidavit.

The default of the defendant is opened upon the payment of the taxable costs and disbursements, and, meanwhile, the judgment may stand as security.