The action is for damages resulting from alleged negligence. The complaint charges that on or about June 3, 1898, the plaintiff applied to the defendant for admission into its hospital for treatment and was accepted for that purpose, he then suffering from a disease and injury necessitating an operation as for an indirect inguinal hernia upon the left side of his body; that on the following day the defendant, by its physicians, surgeons, agents and servants and other persons, performed an operation upon plaintiff as for an indirect inguinal hernia upon the right side of his body while he was under an anesthetic, insensible and unconscious ; and that the defendant in so conducting the operation acted in a careless, negligent, reckless and improper manner in so acting without regard to the kriown condition of plaintiff and in so operating upon the side of plaintiff’s body unaffected, by disease or injury, to his damage, etc. The defendant by its answer denies the negligence alleged, and asserts by way of a separate defense that its hospital is a charitable institution; that the medical and surgical attendance and ministrations furnished the plaintiff were furnished free.; and that they were so accepted by the plaintiff.
The New York Bost Graduate Medical School and Hospital was created by chapter 438 of the Laws of 1886, the.object of the incorporation being the establishment of a school for the further instruc- ■ tion of persons already possessing the degree of doctor in medicine *65and a hospital for the treatment of diseased and injured persons in the city and county of New York. It had no capital stock, its * funds being derived from public and private donations, from devises and bequests, the board of paying patients, and the tuition fees. By chapter 385 of the Laws of 1895 the board of estimate and apportionment of the city of New York was authorized to provide for an annual payment to the corporation of the sum of $30,000 for its “ charitable uses and purposes.” The tuition fees range from $40 to $100 a course, amounting in the aggregate to a considerable sum annually, all of which is devoted to the support of the hospital. The officers, directors, faculty, physicians and surgeons render their services gratuitously, and any one may receive medical and surgical treatment free. Nothing is ever charged for medical services. If an emergency' patient wishes to pay a fee for medical services, it may be done, but the fee is paid at the office as a gift to the hospital. Those who are able to pay are charged eight dollars per week for room, board, nursing, medicines, dressings and the services of the house staff, which Dr. Roosa testified meant “ that they are to understand that they have nothing more to pay, that by no chance shall any house doctor undertake to get a fee out of them. The charges that we impose include everything that is done for them there; we have a house staff; it includes all they ever do; it includes what the nurses do and what they do, everything, except a medical fee. A fee between a doctor and a patient, that it does not include.”
The plaintiff, being ruptured, as stated in the complaint, on the left side, applied for admission to the hospital for the purpose of undergoing an operation, bringing with him a card from his "own physician stating that fact and giving the true location of the hernia. The house physician examined him and confirmed his doctor’s diagnosis. He arranged with the clerk at the desk for the payment of the required eight dollars weekly and he paid that sum during the four weeks he was in the hospital. The second day he was placed under the influence of an anaesthetic, and the operation performed in the presence of the students, after a preliminary lecture to the class by one of the attending physicians. The operation was performed on the right side, which was in a perfectly healthy and *66normal condition, and the plaintiff was obliged to and did afterwards, submit to another operation at another hospital for the removal of the hernia diagnosed by his doctor. The surgeon who performed the operation which is the subject of complaint had been subjected to a competitive examination before being accepted by defendant’s-board of examiners, and before the operation in question was regarded by the defendant as skillful and competent.
However opinions may differ on the question of the policy of ■exempting charitable institutions from the ordinary rule of' respondeat superior', the law is. too well settled in this State-to permit a recovery against the institution for the wrong committed by the surgeon who ' operated upon the plaintiff gratuitously. While the precise question does not yet appear to have been passed on by the Court of Appeals, it has been decided adversely to the right of action a number of times at the Circuit and the General Term. (Proctor v. Manhattan Eye & Ear Hospital; Eibee v. Long Island College Hospital; Pryor v. Manhattan Eye & Ear Hospital, 15 N. Y. Supp. 621, note; Van Tassell v. Manhattan Eye & Ear Hospital, 39 N. Y. St. Repr. 781; Joel v. Woman’s Hospital, 89 Hun, 73.) In the last case cited, Mr. Justice Brown said (p. 74): “ Van Tassell v. The Manhattan Eye & Ear Hospital (39 N. Y. St. Repr. 781) presented a case similar to that now before this court, and it was there decided by the General Term of this department that the defendant was not liable except for the omission to exercise due care in the selection of its surgeons and other-employees.
“.In the absence of any controlling authority in this State, we are bound by that decision.
“ The great weight of authority, however, supports the ruling of the trial court. (McDonald v. Mass. Gen. Hospital, 120 Mass. 432; Fire Insurance Patrol v. Boyd, 120 Penn. 624 ; Doyle v. N. Y. Eye & Ear Infirmary, 80 N. Y. 631; Harris v. Woman’s Hospital, 27 Abb. N. C. 37; Allan v. The State Steamship Co., 132 N. Y. 91; O’Brien v. Cunard Steamship Co., 154 Mass. 272.)
“ In the case of Qlavin v. Rhode Island Hospital (12 R. I. 411) the ruling of the trial court, to which exception was taken, was much broader than in the case before us. In that case a verdict was directed for the defendant on the ground that a public charitable *67corporation was exempt from liability for any negligence on the part of its trustees, agents, etc.
“ While there is very much in the opinion tending to support the appellant’s contention, the case as presented by the exception is not necessarily an authority in her favor.”
In Laubheim v. De K. N. S. Co. (107 N. Y. 228) an action was brought for damages resulting from unskillful treatment by defendant’s ship surgeon. There was at the time no law requiring the company to provide a surgeon, but this was done voluntarily, and he was paid an annual salary and a certain sum in addition for each passenger carried. In affirming, a judgment of nonsuit, the court said (p. '230): “ If, by law or by choice, the defendant was bound to provide a surgeon for its ships, its duty to the passengers was to • select a reasonably competent man for that office, and it. is liable only for a neglect of that duty. (Chapman v. Erie R. Co., 55 N. Y. 579; McDonald v. Hospital, 120 Mass. 432; Secord v. St. Paul R. R. Co., 18 Fed. Rep. 221.) It is responsible solely for its own negligence and not for that of the surgeon employed. In performing such duty it is bound only to the exercise of reasonable care and diligence, and is not compelled to select and employ the highest skill and longest experience.”
To the same effect is Allan v. State Steamship Co. (132 N. Y. 91), a case which arose under a statute requiring the owner of passenger ships to provide for the use of passengers medicines for their necessary treatment during the voyage, under the charge of a medical practitioner, and it was held that neither the statute nor the common law imposed any liability on the owner if he employed a duly qualified and competent man and supplied him with the necessary medicines and instruments. The court said (p. 99): “ When the shipowner has employed a competent physician duly qualified as required by the law and has placed in his charge a supply of medicines sufficient in quantity and quality for the purposes required which meet the approval of the government officials and has furnished to the physician a proper place in which to keep them, we think it has performed its duty to its passengers. That from that time the responsible person is the physician, and errors and mistakes occurring in the use of the medicines are not chargeable to the shipowner, and that no different rule is applicable to such *68mistakes as are the result of improper arrangement in the care of the medicines than to those which are the result of errors in judgment.” (See, also, Union Pacific Railway Co. v. Artist, 60 Fed. Rep. 365; Downes v. Harper Hospital, 101 Mich. 555; Powers v. Massachusetts Homœopathic Hospital, 101 Fed. Rep. 896 ; Fire Insurance Patrol v. Boyd, 120 Penn. St. 624; Philadelphia v. Pennsylvania Hospital, 154 id. 9; Gooch v. Association for Relief of Aged Females, 109 Mass. 559; Hearns v. Waterbury Hospital, 66 Conn. 99.)
Many of the eases cited are authority for the proposition that the fact that the institution receives pay patients does not change its status as a charitable organization. “ The character of the institution is in no way changed bv the fact that a patient or inmate of a private charitable hospital or asylum who is financially able to pay wholly or in part for his board, treatment and care generally, will usually be required to do so. Where the funds so received are disbursed further to aid and relieve suffering in the legitimate mission of the hospital or asylum, the law will regard them as an incidental addition to the trust fund or income.” (15 Am. & Eng. Ency. of Law [2d ed.], 759.) This doctrine was applied to the question of taxation in this department in People ex rel. New York Hospital v. Purdy (58 Hun, 386); and has been held, in addition to many of the cases already -cited, in American Asylum v. Phœnix Bank (4 Conn. 178) and St. Joseph's Hospital Association v. Ashland County (96 Wis. 636).
The fact that the defendant charged tuition fees and that the operations were a necessary incident to successful teaching, and that in that sense the defendant may be said to have been paid for. the operation, does not change the relation of the parties to each other. In the Laubheim Case (supra) the defendant charged passenger fares, and the voluntary employment of a paid physician for the voyage was doubtless an inducement to ship by its line, but the circumstance was not regarded as sufficient to impose any liability not predicated upon a failure to exercise due care in the selection of the physician. The plaintiff makes no claim that he was to pay for the operation or that he' expected to do so. In the performance of the operation, so far as the plaintiff was concerned, the defendant was engaged solely in charitable work, and the corporation must, there*69fore, be regarded as a charitable institution as to him in that respect. It engaged to furnish him with a room, board and attendance at a stipulated weekly sum, and with a surgeon to operate for nothing. When it had furnished a surgeon selected with proper care and with no reason to believe him to be negligent or incompetent, it fulfilled its duty. It did not control him in the performance of the operation, and must be held free from liability for his want of care until some controlling decision shall disturb the existing current of authority.
The case of Ward v. Saint Vincent's Hospital (39 App. Div. 624) is not authority to the contrary. There the injury complained of was received in consequence of the negligence .of the nurse for whose services the plaintiff had paid, or agreed to pay, the defendant. The action was not for negligence, but for damages for the breach of an express contract by which the defendant had agreed to provide the plaintiff with a skillful, trained and competent nurse and which contract the court held the defendant had power to make and had broken. The court refused to decide whether in the absence of the contract the negligence complained of would have involved a breach of duty, but reversed the judgment solely on the ground that it did involve the breach of a contractual obligation lawfully assumed. Here, however, no contract is alleged or proven, and the case'has no application.
The appellant insists that the decision of the Court of Appeals in the case of People ex rel. Board Charities v. N. Y. Soc. P. C. C. (161 N. Y. 233) is authority for the proposition that the defendant corporation is not of a charitable nature in the view of the law. The question there applied to the scope of certain sections of the State Constitution and laws passed pursuant to them giving power of visitation to the State Board of Charities. It was held that the society appellant was not a charitable institution within the meaning of the Constitution and laws referred to, inasmuch as the sole purpose of its existence was the enforcement of the criminal laws to prevent cruelty to children, and not the dispensing of charity as such.
The court found the reason of the law then under consideration to lie in the abuses supposed to exist in the appropriation and expenditure of public money for charitable purposes, and stated in the opinion, per O’Brien, Jl (p. 244), that “ it is safe enough to *70assume that a corporation that does not fall within the reason of the enactment is not a charitable institution, even though engaged in a good and laudable work without gain or reward.” There was nothing in the decision intended to conflict with the previous decision in People ex rel. New York Inst. for Blind v. Fitch (154 N. Y. 14), and there is certainly nothing in the. letter or the spirit of the decision which tends in any degree to enhance the liability of the defendant for the negligent act of a doctor not in its pay while engaged in the performance of an operation upon one who had voluntarily requested treatment without charge or the expectation of a fee therefor.
The judgment should'be affirmed.
Judgment unanimously affirmed, with costs. Sewell, J., not sitting.