The complaint states three causes of action. The first cause of action sets forth in general all the facts but contains allegations appropriate to a cause of action for fraud and deceit. The second cause of action repeats the allegations of the first cause of action and adds thereto an allegation appropriate to a cause of action for assault. The third cause of action is an action for malpractice or negligence.
It has been held that where a surgeon performs an operation without his patient’s consent, except in cases of emergency, he commits an assault for which he is liable in damages. (Schloendorff v. New York Hospital, 211 N. Y. 125.) The second cause of action herein is for a direct trespass upon the person of the deceased, resulting in her death. It is a wrongful act resulting in death and the action is permitted under the statute.. (Decedent *449Estate Law, § 130 et seq., as added by Laws of 1920, chap. 919.) The allegations in regard to misrepresentation or fraud are not inappropriate to this cause of action because they bear upon the question of consent.
The first cause of action is founded upon willful fraud, it being the claim of the plaintiff that the defendants knowingly misrepresented the facts to the deceased, inducing her to consent to an operation which resulted in her death. It might be argued that this is not an appropriate cause of action for a direct trespass to the person of another because such a cause of action would be one for assault. The claim of the plaintiff, however, is that the false representations proximately caused the death of plaintiff’s intestate. If so, it was a wrongful act resulting in death.
“ ‘ The proximate cause of an event must be understood to be that which, in a natural and continuous sequence, unbroken by any new cause, produces that event, and without which that event would not have occurred.’ ” (Laidlaw v. Sage, 158 N. Y. 73, 99.) Death does not ordinarily flow in a natural and continuous sequence unbroken by any new cause from the mere fact that a representation is made that an operation is necessary, although the representation is false. Eliminating the act of the patient in consenting to the operation, which consent might be held to be a natural sequence flowing from the representation of the physician that an operation is necessary, there is a new and independent act on the part of the physician when he actually performs the operation or succeeds in operating upon her for something else after having thus obtained her consent to some operation. Without the operation the fraud would have amounted to nothing so far as causing her death was concerned. Standing alone, therefore, it might be urged that the fraud was not the wrongful act which caused her death and that the fraud is merely a matter of evidence in the action for assault to demonstrate the absence of consent. Arguing in this manner it would seem that the first cause of action cannot stand alone . but is merged in the second cause of action.
On the other hand, there is a theory upon which we can hold that the willful and fraudulent misrepresentation of the physician, that an operation was necessary, when it was not, can be deemed to be a proximate cause of death following an operation thereafter had. It is, that the advice of a physician is of such a character as to invite the damage which was produced because of the superior knowledge of the physician upon which a patient ought to be permitted to rely, so that we may fairly reach the conclusion that if it were not for that advice of the physician, the operation would *450not have been had and the operation itself naturally flowed as a continuance of the primary dereliction. (Marx v. Ontario Beach H. & A. Co., 211 N. Y. 33.) The physician ought not to be excused for such primary dereliction since it was of such a character as would be likely to invite or produce the operation and death. While I cannot see the necessity for reaching back to the primary dereliction where such primary dereliction is an incidental part of the cause of action for assault through the operation itself, the mere fact that the first cause of action is merged in the second does not in itself destroy the identity of the first or its sufficiency as a cause of action and we can equally well say that the action based upon assault is merged in and becomes a part of the action based upon fraud. Each is a wrongful act proximately resulting in death.
My conclusion is that the first cause of action may be sustained as a separate cause of action and I, therefore, concur with Mr. Justice Kiley.
Order affirmed, with ten dollars costs and disbursements, with leave to the appellants to answer within twenty days on payment of such costs and of the costs awarded in the order appealed from.