SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
November 21, 1968
DAVID R. MILLIGAN, AS ADMINISTRATOR OF THE ESTATE OF MILLICENT MILLIGAN, DECEASED, APPELLANT,
SAMUEL SOLOMON ET AL., RESPONDENTS
Concur -- Botein, P. J., Stevens, Eager and Capozzoli, JJ.
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 co-defendant in the hypothetical question relating to cause of death, justified dismissal of the complaint against the former.
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.
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