Note 177 — Chapter IV

Bellinger v. Craigue, 31 Barb., 534; Gates v. Preston, 41 N. Y., 113; Blair v. Bartlett, 75 N. Y., 15. The general rule is that in an action arising on contract damages arising for a tort cannot be set up as a counter-claim. It follows from this that in an action of a physician for services, damages for malpractice could not be recouped or counter-claimed ordinarily. The way in which that rule is avoided, and the safer method, is for the defendant to plead that it was part of the contract of the physician (which it undoubtedly is), to perform his services in a faithful and skilful manner, and that he committed a breach of it, thus charging the damages which flowed from his acts as a breach of contract, not as a cause of action in tort for malpractice or negligence. If that is done the counter-claim arising in malpractice can probably be pleaded in an action for services, and possibly a counter-claim in excess of the amount claimed by the physician recovered as an affirmative judgment against him. On the other hand, in an action for malpractice brought by the patient against a physician, which is generally in form an action for a tortious act, or neglect, the physician cannot plead the performance of services and the non-payment of his bill as a counter-claim or recoupment, because that arises on a contract. If there is any exception to this rule it will be found to grow out of the language of sections 549 and 550 of the Code of Civil Procedure of the State of New York, and of similar enactments in other States, which permit counter-claims arising out of the same subject-matter as the cause of action, to be pleaded in that action. In New York State, however, any effect of that kind is negatived by the general provision that the actions must not only arise out of the same subject-matter but be of the same kind and class.