While I would agree with the majority that if the verdict against the city was supportable, it should be reduced by the $75,000 settlement and bear interest at 6% rate, I believe the judgment appealed from should be reversed and a new trial directed on the claim against said defendant.
It appears that decedent’s abdominal pain commenced shortly after he ate a stale sandwich. While at Fordham Hospital his symptoms were abdominal pain, some diarrhea, 99.8 temperature, normal blood pressure and a soft abdomen. Even plaintiff’s expert conceded that such a history was more typical of gastroenteritis or some adverse reaction to the sandwich than of appendicitis. Indeed, he testified that diarrhea was atypical, and a soft abdomen contraindicative, of appendicitis; and that, on these symptoms alone, the failure of Fordham Hospital’s doctor to admit decedent for further tests was not a departure from accepted medical standards. Moreover, even if we assume arguendo, that decedent had appendicitis, and not gastroenteritis, while being examined at Fordham Hospital, liability could not be predicated on any honest error of professional judgment (Bullock v. Parkchester Hosp., 3 A D 2d 254; Battistella v. Society of New York Hosp., 9 A D 2d 75).
*107Accordingly, plaintiff’s claim against the city must rest solely on the question of whether there was sufficient evidence to support a finding that Fordham Hospital knew of Jewish Memorial Hospital’s tentative diagnosis of possible appendicitis; and that its failure to admit him, with such knowledge, was a deviation from accepted medical practice. In order to prove such knowledge plaintiff refers to several obviously equivocal affirmative responses by Fordham’s doctor to certain inquiries as to whether or not he knew that decedent had been transported from Jewish Memorial Hospital to his institution by ambulance. Indeed, since I find nothing in any of the hospital records or in the testimony of decedent’s two sons, who were with him at Fordham, to indicate any communication between the two hospitals, were it not for the doctor’s aforesaid testimony in his examination before trial, I would be inclined to recommend dismissing the complaint against the city altogether and not merely to conclude that the judgment against it is against the weight of the evidence.
Additionally, I believe a new trial is required because of the trial court’s refusal to permit the city, after resting, upon application made the very next court day and prior to any further proceedings before the jury, to reopen its case to present an expert witness then present in the courtroom. The city was obviously surprised by Dr. Wetchler’s sudden decision to settle his case; and, having been deprived of the opportunity of eliciting further information from him, it should have been permitted to present its witness. In a close case such as this, where there was no factual basis for any claim of estoppel or laches, the trial court’s refusal to grant the request was an abuse of discretion as a matter of law.
Accordingly, the judgment appealed from should be modified to the extent of reversing that portion thereof as grants judgment against appellant the City of New York and a new trial ordered as to said defendant; and otherwise affirmed.
McG-ivee.n,_ J. P., and Capozzoli, J., concur with Nunez, J.; Mukphy, J., dissents, in part, in an opinion in which Markewich, J., concurs.
Judgment, Supreme Court, Bronx County, entered on March 26,1970, modified, on the law, to the extent of reducing the judgment by $75,000 with the remaining balance thereof bearing interest from the date of death at the rate of 6% per annum, and otherwise affirmed, without costs and without disbursements.
Settle order on notice.