Milligan v. Solomon

Appellate Division of the Supreme Court of New York

Milligan v. Solomon

31 A.D.2d 531, 295 N.Y.S.2d 223, 1968 N.Y. App. Div. LEXIS 2858

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 21, 1968

StatusPublished

This text of 31 A.D.2d 531 (Milligan v. Solomon) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Milligan v. Solomon, 31 A.D.2d 531, 295 N.Y.S.2d 223, 1968 N.Y. App. Div. LEXIS 2858 (N.Y. Ct. App. 1968).

Pincite

Opinion

Judgment in favor of defendants Samuel Solomon and Jules B. Aaron, unanimously modified, on the law, to the extent of reversing the judgment in favor of defendant Samuel Solomon and severing the action and directing a new trial as to him, with costs and disbursements to abide the event, and, as so modified, the judgment is affirmed, with $50 costs and disbursements to defendant Jules B. Aaron against plaintiff. In our opinion the case made out against Dr. Solomon was sufficient to warrant its submission to the jury (Dunham v. Village of Canisteo, 303 N. Y. 498; O’Neill v. Montefiore Hosp., 11 A D 2d 132; see Hicks v. United States, 368 F. 2d 626, 632). However, the charge against Dr. Aaron must fail as entirely too speculative. Mr. Milligan testified that he called the medical group around 3:30 a.m. that his conversation with Dr. Aaron took place about 15 or 20 minutes after termination of the call, that he called Dr. Carrington around 5:00 a.m., and that the latter arrived about 15 minutes later and, after applying artificial respiration for four or five minutes, declared Mrs. Milligan dead. The shortness of the interval between the conversation with Dr. Aaron and the death, considered in the context of plaintiff’s failure to differentiate between Dr. Aaron and his codefendant in the hypothetical question relating to cause of death, justified dismissal of the complaint against the former. Concur — Botein, P. J., Stevens, Eager and Capozzoli, JJ.

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Judgment in favor of defendants Samuel Solomon and Jules B. Aaron, unanimously modified, on the law, to the extent of reversing the judgment in favor of defendant Samuel Solomon and severing the action and directing a new trial as to him, with costs and disbursements to abide the event, and, as so modified, the judgment is affirmed, with $50 costs and disbursements to defendant Jules B. Aaron against plaintiff. In our opinion the case made out against Dr. Solomon was sufficient to warrant its submission to the jury (Dunham v. Village of Canisteo, 303 N. Y. 498; O’Neill v. Montefiore Hosp., 11 A D 2d 132; see Hicks v. United States, 368 F. 2d 626, 632). However, the charge against Dr. Aaron must fail as entirely too speculative. Mr. Milligan testified that he called the medical group around 3:30 a.m. that his conversation with Dr. Aaron took place about 15 or 20 minutes after termination of the call, that he called Dr. Carrington around 5:00 a.m., and that the latter arrived about 15 minutes later and, after applying artificial respiration for four or five minutes, declared Mrs. Milligan dead. The shortness of the interval between the conversation with Dr. Aaron and the death, considered in the context of plaintiff’s failure to differentiate between Dr. Aaron and his codefendant in the hypothetical question relating to cause of death, justified dismissal of the complaint against the former. Concur — Botein, P. J., Stevens, Eager and Capozzoli, JJ.

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Bluebook (online)

31 A.D.2d 531, 295 N.Y.S.2d 223, 1968 N.Y. App. Div. LEXIS 2858, Counsel Stack Legal Research, https://law.counselstack.com/opinion/milligan-v-solomon-nyappdiv-1968.

Opinion

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