#### Walter C. Gilday, Respondent, *v.*William D. Hennen, Appellant.

(Supreme Court, Appellate Term, First Department,

February, 1913.)

Services — work, labor and services—one physician aiding another in hospital—actions.

Where two physicians are members of the staff of a hospital, the one who at the request of the other aids him in an operation to be performed in the operating room of the hospital cannot maintain an action against the other physician to recover the reasonable value of his services.

Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, ninth district, rendered in favor of the plaintiff in an action for work, labor and services.

Hart & Tompkins (Millard F. Tompkins, of counsel), for appellant.

Frederick W. Sperling, for respondent.

Lehman, J.

The plaintiff and the defendant are both members of the staff of a hospital in the city of Hew York. While the defendant was performing an operation upon a patient he desired the plaintiff’s aid and sent a telephone message requesting the plaintiff to come to the hospital to help him out. Plaintiff immediately came to the hospital and went into the private operating room. A woman was on the operating table. Her abdomen was open and she was suffering from a hemorrhage. The defendant said to him, “ Doctor, I wish you would finish this operation for me; this woman is bleeding; I can’t control it.” Plaintiff then finished the operation. The defendant was performing the operation for a fee of ten dollars and the patient was not strictly a charity patient, although the defendant was paying for the private room. The plaintiff thereafter brought this action to recover the reasonable value of his services.

*253Ordinarily, of course, where a person requests another to perform services for him he impliedly agrees to pay the reasonable value of the services rendered at his request. This rule is founded in common sense. Unless the circumstances in which the request is made justify him in the belief that the person requested to perform the services would not expect any compensation, the person requesting the services must reasonably have supposed that his request implied a promise to pay for the services. Such circumstances exist where the relation of the parties is such that the services might well be requested as a matter of personal or professional courtesy or duty. If, therefore, the plaintiff is entitled to recover upon an implied contract to pay for the services rendered, it must be upon the theory that there is no professional courtesy or duty requiring a physician to give aid to a- brother practitioner associated with him in the same hospital when the brother practitioner’s skill or experience is insufficient to cope successfully with an emergency that has arisen and which may cause disastrous results to a patient under his care. I am absolutely unwilling to hold that the profession of medicine does not impose such" an obligation upon its members, nor do I believe that even the plaintiff would seriously contend that the judgment in his favor should be sustained if it can be sustained only upon such a theory. He urges, however, that this obligation exists only in regard to charity patients in the hospital and not in regard to private patients in a private room. The distinction which he tries to draw is in my opinion, however, not logical. While a physician is entitled to reasonable compensation for his services from the person benefited, the services which he renders should not be measured by the compensation received. Physicians ordinarily recognize this rule and give the benefit of their skill free to persons who cannot pay for the services rendered, and as a matter of professional courtesy will give reasonable assistance to other physicians. The plaintiff has shown that he recognized this rule by joining the staff of a hospital where it is the custom that physicians should treat patients gratis and aid each other in their treatment of public patients. A physician *254who claims under an implied contract for his services should show, therefore, that the services were rendered not as a part of his high professional obligations or as a matter of professional courtesy, but because he expected to be paid for them. This is the test to be applied in every ease where a physician sues upon an implied contract. It seems to me that where a physician requests the services of another physician to aid him in earning compensation for himself he is bound to pay for these services, but he has a right to believe that a fellow practitioner in the same hospital will expect no compensation if his services are sought merely to aid him in an operation from which he himself expects to derive no substantial profit. If the operation had been performed in the public operating room the plaintiff concedes that he would 'have been reasonably expected to render the requested aid without compensation, but the true distinction it seems to me is not to be found in the place where the operation was performed but is to be found in the nature and purpose of the services requested. .Since the defendant requested the plaintiff’s aid not for the purpose of earning a fee for himself but only for the purpose of alleviating suffering or removing an imminent danger, he had a right to expect that these services would be rendered freely and willingly.

Judgment should be reversed, with costs, and complaint dismissed, with costs.

Seabuby and Page, JJ., concur. .

Judgment reversed, with costs, and complaint dismissed, with costs.