Temple v. Keeler

• Decision Date: 03 June 1924
• Citation: 144 N.E. 635,238 N.Y. 344
• Parties: TEMPLE v. KEELER.
• Court: New York Court of Appeals Court of Appeals

238 N.Y. 344

144 N.E. 635

TEMPLE

v.KEELER.

Court of Appeals of New York.

June 3, 1924.

Action by Jessie M. Temple against William H. Keeler. From judgment of Appellate Division (207 App. Div. 880,201 N. Y. Supp. 951), unanimously affirming judgment for plaintiff on verdict, defendant appeals by permission.

Affirmed.

The action was brought to recover for loss and damage alleged to have been caused plaintiff by sickness resulting, as alleged, from her eating fish in defendant's restaurant, which was unwholesome and unfit for human food, whereby she became ill from ptomaine poisoning.

Appeal from Supreme Court, Appellate Division, Third department.

Charles B. Sullivan, of Albany, and Nelson R. Pirnie, of Pulaski, for appellant.

William E. Woollard and Louis J. Rezzemini, both of Albany, for respondent.

ANDREWS, J.

[1][2] We hold that, where a customer enters a restaurant, receives, eats, and pays for food, delivered to him on his order, the transaction is the purchase of goods. We hold also that under such circumstances the buyer does by implication make known to the vendor the particular purpose for which the article is required, and, where the buyer may assume that the vendor has had an opportunity to examine the article sold, it appears conclusively that he relies upon the latter's skill or judgment. Rinaldi v. Mohican Co., 225 N. Y. 70, 121 N. E. 471. Consequently there is an implied warranty that the food is reasonably fit for consumption.

We have not before held that the owner of a restaurant sells the food which he provides for his guests. Indeed, in Race v. Krum, 222 N. Y. 410, 118 N. E. 853, L. R. A. 1918F, 1172, we refused to pass upon the precise question as not then before us. Yet we cannot logically differentiate the facts there involved from those in the case at bar. Miss Temple enters a restaurant, orders a portion of fish which the jury might find was unwholesome, receives it, eats it, pays for it, and later becomes ill, it may be inferred, as the result. Mr. Race enters a drug store, orders a portion of ice cream which was unwholesome, receives it, eats it, pays for it, and later becomes ill as a result. This, we said, was a sale. The names of the plaintiffs differ; one defendant owns a restaurant and the other a drug store. But these variances are not sufficient to lead us to distinguish the two cases. It has been said that a restaurant owner does not sell food but renders a service-that a seat is furnished, the services of a waiter and cook, the use of plates and silver. There are seats before an ice cream counter. A clerk takes the order and delivers the food. Mr. Krum made or prepared the ice cream. It is eaten from a plate or glass with a fork or spoon belonging to the proprietor. It has also been said that in a restaurant, while the customer...