While plaintiff was a patient at Lenox Hill Hospital she was attended, upon the recommendation of her physician, by “ private duty ” or “ special duty ” nurses, stated in the record to be nurses whose “ services during the period of time are exclusively for the patient.” The nurses were obtained by the hospital and the bills which plaintiff received from the hospital included charges for their services. Plaintiff was the holder of a “ 5000 Reserve Hospital Policy ” issued by defendant, and, having paid the bills, sought reimbursement from defendant pursuant to the policy provision requiring the latter to pay the reasonable expense actually incurred for necessary miscellaneous hospital care and treatment for which a charge is made by the hospital.” Defendant refused to pay the nursing charges, and this action was brought to recover them. The jury returned a verdict in favor of defendant. Appellate Term reversed the judgment entered on the verdict and directed judgment for plaintiff, stating, ‘ ‘ The issue was one of law and it was error to submit it to the jury.”
That the nursing expense was reasonable in amount was not in dispute at the trial, nor was there any question that the nursing constituted “ necessary * * * hospital care.” The sole issue — a factual one — was whether a charge for the nursing had been made by the hospitaL Appellate Term stated, and evidently regarded as conclusive, that “ The hospital bill included the charge for nursing services.” The content of the hospital bill, however, while of course having an important bearing, was not necessarily controlling in view of the testimony which defendant adduced. Thus, the patients ’ accounts manager of Lenox Hill Hospital testified that private duty nurses were not employees of the hospital and that there was available to all patients entering the hospital a descriptive brochure which contained, under the caption “ Private Nurses ”, the following *12paragraph: “ If you or your physician would like to employ the services of a private duty nurse, your doctor will make the necessary arrangements. These nurses are not Lenox Hill employees. However, for your convenience, charges will be included on your hospital bill.” (Emphasis in original.) Defendant’s position, in short, was that plaintiff, and not the hospital, had engaged the nurses, and that the hospital set forth their charges on its bill merely to facilitate payment by plaintiff of her indebtedness to them. To contradict this position, to show that the obligation to pay a private duty nurse rested on the hospital and not on the patient, plaintiff brought out by cross-examination of the accounts manager that such a nurse was paid the amount of the charges by the hospital when the patient failed to pay the hospital bill.
I agree with Appellate Term that the policy provision is unambiguous. That was the view of both attorneys at the trial, who were also in accord that “ charge ” meant, as plaintiff’s attorney phrased it, “ simply an imposition of a debt.” But whether the charge was made by the hospital, or by the private duty nurses through the medium of the hospital, was in my opinion an issue of fact requiring submission to the jury and by that body not unreasonably decided.
Accordingly, I must dissent from the affirmance of the determination appealed from, and vote to reverse it and reinstate the judgment entered upon the verdict.
Capozzoli and Tilzer, JJ., concur with MoG-ivern, J.; Botein, P. J., dissents in opinion, in which Stevens, J., concurs.
Determination affirmed with $50 costs and disbursements to the respondent.