We agree that the court's final answer here may have given an erroneous impression. After explaining concurring causes of death, an instruction was asked on the supposition that the jury found that Ryder “ would not have died except for the negligence of the physician,” which led to the statement that then there could be no recovery against defendant.
The rule is that an original wrongdoer, whose acts inflict injuries that might result in death, is not relieved by errors of a surgeon or nurse in treatment of the injury. (Purcell v. Lauer, 14 App. Div. 33, 38; Lyons v. Erie Railway Co., 57 N. Y. 489; Caven v. City of Troy, 15 App. Div. 163.)
And this extends also to the criminal law. If a felonious assault is operative as a cause of death, the causal co-operation *733of erroneous surgical treatment does not relieve the assailant from liability for the homicide. (People v. Kane, 213 N. Y. 260.)
The order for a new trial should, therefore, be affirmed, with costs.
Present — Mills, Rich, Putnam, Blackmar and Jaycox, JJ.
Order unanimously affirmed, with costs.