#### John C. MacEvitt, Plaintiff, *v.*G. Henry Maass, Defendant.

(Supreme Court, Kings Trial Term,

January, 1901.)

1. Services — Substitution of another contract.

Where a surgeon after agreeing to' perform a certain operation on the defendant’s wife for a sum agreed upon makes a further examination, revealing different conditions which make the proposed operation unnecessary, and require a different and much more serious-one, of all of which he informs the defendant who directs him to perform the new operation without anything being said about a charge as to compensation, he is entitled to recover what his services-are reasonably worth, as the agreement as to the first proposed operation and its price must be considered as superseded.

*5532. Same — Evidence of attending surgeons as experts — Code C. B., § 834.

The exclusion1, under section 834 of the Code of Civil Procedure, of the evidence of the plaintiff and of that of the surgeons who assisted Mm, regarding the nature and particulars of the patient’s malady or of the operation — leaving the ease without proof in that regard — does not require the exclusion of their evidence as experts as to the value of the plaintiff’s services.

Action by a physician and surgeon to recover for services. Motion for a new trial on the minutes by the defendant.

John 0. Judge for plaintiff.

Francis A. McCloskey for defendant.

Gaynor, J.:

The plaintiff, a physician and surgeon, was called in by the defendant to treat his wife. He made an examination of her, and informed the defendant that a surgical operation was necessary. They entered into an agreement that the plaintiff should perform it for $75. The trouble was an internal one somewhere in the abdomen. The plaintiff testified that a day or two later he made another examination of the patient and found conditions which were entirely new to him, and foreign to the surgical operation which he had proposed; that the first diagnosis was entirely wrong; that her condition was one of much greater gravity than had been supposed from the first diagnosis; that the operation first mentioned was entirely unnecessary; that an entirely different surgical operation, but in the same region was necessary; that it was one which would jeopardize the plaintiff’s life, whereas the first one mentioned would not have done so; and that he substantially informed the defendant of all of this. But he did not say to him that the new operation was worth more or less than the one first proposed, or that he would charge for it more or less than the sum which had been agreed upon. In fine, nothing was said by either on the subject of compensation for the new operation. The defendant simply assented to the plaintiff performing it.

It was left to the jury to find what the facts were, and to say whether the agreement for a compensation of $75 was superseded, and they gave the plaintiff a verdict for $225. I think on reflection that 'the case was one for the jury. The jury has found that *554it was true that the diagnosis on whioh the agreement for compensation was made was wrong; that entirely new conditions were found on a second examination whioh made an entirely different operation necessary, .and that such operation would jeopardize the patient’s life, while the one first proposed was not dangerous; and that the plaintiff informed the defendant of all of this. This made known to the defendant that the operation to he performed was not only different to the one first proposed, but of a more difficult and serious nature; and the legal conclusion from this is that the defendant in assenting to the performance by the plaintiff of the new operation must necessarily have understood that the agreement previously made could not he carried out and was at an end, and that he was to pay fo-r the new services what "they should he reasonably worth. If it had turned ouit on the second examination that the operation first mentioned was not necessary, and that an entirely different and only trifling operation was necessary, and the plaintiff had informed the defendant thereof, the. plaintiff could not afterwards have claimed that $75 was agreed upon for that operation, although it was worth only one-third of that amount. The law would he that both parties necessarily understood that the first agreement was no longer in effect, though that was not in so many words said.

The testimony of the plaintiff and of the surgeons, who assisted him in the operation, concerning the ailment of the patient, and the particulars of the operation, was excluded under section 834 of the Code of Civil Procedure on the objection of the defendant. That section is in the broadest terms that a physician or surgeon *il*shall not he allowed to disclose any information which he acquired in attending a patient, in a professional capacity, and which was necessary to enable him to. act in that capacity”; and the evidence had to he excluded (Van Allen v. Cordon, 83 Hun, 379; Renihan v. Dennin, 103 N. Y. 573). The defendant then excepted to the admission of the testimony of the plaintiff and of the said surgeons as experts in respect of the value of the plaintiff’s services, on the ground that as the nature and particulars of the surgical operation had not been given in evidence, there was no- basis for such evidence. There was evidence that a capital surgical operation was performed, of the time it took, and of the number of visits the plaintiff made to the patient before .and after it; hut there was none to show what the operation really was. But while there were *555mo particulars before the jury to- serve as a basis for the value of "the -surgical operation, the witnesses knew the particulars. The statute excluding such particulars cannot justly be held to exclude such evidence of value by the surgeons who saw them. It was the best evidence which the nature of the case admitted of; and that has been held to justify the admissio-u of evidence. The operation of the statute having created an exceptional case it had to he treated in an exceptional manner (Van Allen v. Gordon, *supra).*

The motion for a new trial is denied.