(dissenting). Dore and Callahan, JJ., dissent and vote to reverse the judgment and dismiss the complaint on the ground that the defendant company was not liable for the acts of the physician in administering the blood test. Tapping a blood vessel would be an act involving the exercise of medical judgment and professional skill by the doctor. He was exercising for defendant professional judgment in performing such act and defendant would not be liable for his negligence on the theory of respondeat superior. The physician was an independent contractor. The fact that defendant selected and paid the physician and plaintiff had no choice in the selection would not be controlling (Laubheim v. De K. N. S. Co., 107 N. Y. 228; Schneider v. New York Tel. Co. 249 App. Div. 400). Although the doctor was in a general sense the employee of the defendant he was not its employee so as to create liability for his professional acts (Matter of Renouf v. New York Central R. R. Co., 254 N. Y. 349).
The defendant was required by law to ascertain whether any prospective employee had a communicable disease; that was not merely for protection of defendant but primarily for the protection of the public; and also for plaintiff’s benefit to enable her to qualify for the job she sought to get. Defendant furnished a physician to make blood tests and it was immaterial whether in furnishing the physician in this particular instance it acted by force of law or by choice (Laubheim v. De K. N. S. Co., supra). In selecting a physician it was bound only to exercise reasonable care in doing so and there was no contention here that it failed in that duty. At the outset it is true that plaintiff was not a patient for the purpose of treament and *110cure; but when the doctor took a blood test from her body even though ordered to do so by the employer, that test was in aid of diagnosis of the condition of her blood and it necessarily involved the doctor’s medical judgment and professional skill; in that act he ácted as a physician performing a medical act and she was at the time a patient for the purpose of that act in aid of the diagnosis for her own benefit in order to get the job she sought as well as for the benefit of the employer and ultimately the public.
Peck, P. J., and Botein, J., concur with Cohn, J.; Dore and Callahan, JJ., dissent and vote to reverse and dismiss the complaint, in opinion.
Judgment reversed upon the ground of excessiveness and a new trial ordered, with costs to the appellant, unless the plaintiff stipulates to reduce the judgment to the sum of $15,000 in which event the judgment, as so modified, is affirmed, without costs. Settle order on notice.