Tannenbaum v. Klein

252 A.D. 796, 299 N.Y.S. 119, 1937 N.Y. App. Div. LEXIS 6324

Opinion

In an action to recover for personal injuries alleged to have been caused by the negligent practice of the defendant, a dentist, judgment in favor of the plaintiff reversed on the law and the facts and a new trial granted, costs to abide the event. The finding that the bony growth and the subsequent injuries to plaintiff were caused by defendant’s treatment is against the weight of the evidence. Further, it was error to charge as the court did at folio 772. The effect of the erroneous instruction was to charge the defendant, a general practitioner, with liability for undertaking the extraction of plaintiff’s tooth, which was entirely embedded in the jaw bone. If he was not negligent, defendant would not be liable for the mere undertaking of the extraction. Hagarty, Carswell, Johnston, Adel and Close, JJ., concur.