9 N.Y.2d 195, Greenberg v. Lorenz

Citation9 N.Y.2d 195, 213 N.Y.S.2d 39
Party NameGreenberg v. Lorenz
Case DateMarch 02, 1961
CourtNew York Court of Appeals

Page 195

9 N.Y.2d 195

213 N.Y.S.2d 39

Sheila GREENBERG, an Infant by Louis Greenberg, her Guardian ad litem, et al., Appellants,

v.

Louis LORENZ et al., Doing Business as Pelham Dairies, Defendants-Respondentsand Third-Party Plaintiffs,

v.

BERNICE FOODS, INC., Third-Party Defendant.

New York Court of Appeals

March 2, 1961.

Page 196

[213 N.Y.S.2d 40] Alfred S. Julien and Theodore Kamens, New York City, for appellants.

Page 197

William F. McNulty, New York City, for respondents.

Page 198

DESMOND, Chief Judge.

The infant plaintiff and her father sue a retail food dealer for damages for breach of alleged warranties of fitness and wholesomeness (Personal Property Law, Consol.Laws, c. 41, § 96, subds. 1, 2). Defendant, they say, sold the father a can of salmon for consumption in the family home. The tinned fish, so it is alleged, was unfit for use as food because it contained some pieces of sharp metal which injured the child's teeth and mouth. The trial at City Court produced a judgment for both plaintiffs on the warranty theory. The Trial Justice commented on the trend away from such decisions as Chysky v. Drake Bros. Co., 235 N.Y. 468, 139 N.E. 576, 27 A.L.R. 1533 and Redmond v. Borden's Farm Products Co., 245 N.Y. 512, 157 N.E. 838 and held that although the father had bought the can of salmon the implied warranty extended to his 15-year-old daughter as a member of his household. The Appellate Term affirmed [213 N.Y.S.2d 41] by a vote of 2 to 1. The majority in that court held that the old cases were no longer controlling. The Appellate Division, however, decided (nonunanimously) that the Chysky case is still law and that it forbids a recovery on warranty breach to anyone except the purchaser. As the case comes to us, the father has a judgment for his expenses but the child's own suit has been dismissed for lack of privity.

Our difficulty is not in finding the applicable rule but in deciding whether or not to change it. The decisions are clear enough. There can be no warranty, express or implied, without privity of contract (Turner v. Edison Storage Battery Co., 248 N.Y. 73, 74, 161 N.E. 423, 424; Pearlman v. Garrod Shoe Co., 276 N.Y. 172, 11 N.E.2d 718) since a warranty is an incident of a contract of sale (Fairbank Canning Co. v. Metzger, 118 N.Y. 260, 265, 23 N.E. 372, 373). The warranty does not run with the chattel (Nichols v. Clark, MacMullen & Riley, 261 N.Y. 118, 184 N.E. 729). Therefore, as to food or other merchandise, there are no implied warranties of merchantability or fitness except as to the buyer (Chysky v. Drake Bros. Co., 235 N.Y. 468, 139 N.E. 576, supra; Ryan v. Progressive Grocery Stores, 255 N.Y. 388, 175 N.E. 105, 74 A.L.R. 339). A wife buying food for her husband may be considered his agent so as to allow a recovery by him (Ryan v. Progressive Grocery Stores, supra) and she can bring an action of her own if she makes the purchase and suffers from the breach of warranty

Page 199

(Gimenez v. Great A. & P. Tea Co., 264 N.Y. 390, 191 N.E. 27). When two sisters lived in a common household, the one who bought the food was deemed an agent of the other (Bowman v. Great A. & P. Tea Co., 308 N.Y. 780, 125 N.E.2d 165). The same (Bowman) theory was expanded to let both husband and wife recover (Mouren v. Great A. & P. Tea Co., 1 N.Y.2d 884, 154 N.Y.S.2d 642). But a dependent child is not a contracting party and cannot be a warrantee so no damages are due him (Remond v. Borden's Farm Products Co., 245 N.Y. 512, 157 N.E. 838, supra).

The unfairness of the restriction has been argued in writings so numerous as to make a lengthy bibliography (see, as examples: Starke, Implied Warranties of Quality and Wholesomeness in the Sale of Food, N.Y.L.J., April 8, 9, 10, 1957, p. 4, col. 1 (Vol. 137, Nos. 67-69); 1943 Report of N.Y.Law Rev.Comm., p. 413; 1945 Report of N.Y.Law Rev.Comm., p. 23; 1959 Report of N.Y.Law Rev.Comm., p. 57; Miller, N. Y. State Bar Bulletin, Oct., 1952, p. 313; Melick, Sale of Food and Drink, p. 94; Prosser, Torts (2d ed.), p. 493; 29 Fordham L.Rev. 183 (Oct., 1960); 44 Cornell L.Q. 608; 34 N.Y.U.L.Rev. 1442; 35 St. John's L.Rev. 178 (Dec., 1960)). About 20 States have abolished such...

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79 practice notes
  • 368 F.2d 713 (2nd Cir. 1966), 7, Mull v. Ford Motor Co.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • November 9, 1966
    ...that considerable caution is being exercised by the New York Courts regarding the expansion of warranty concepts. In Greenberg v. lorenz, 9 N.Y.2d 195, 200, 213 N.Y.S.2d 39, 42, 173 N.E.2d 773, 776, (1961), it was stated that the courts 'should be cautious to take one step at Page 718 a tim......
  • 32 N.Y.2d 330, Codling v. Paglia
    • United States
    • New York New York Court of Appeals
    • May 3, 1973
    ...(Turner v. Edison Stor. Battery Co., 248 N.Y. 73, 74, 161 N.E. 423, 424). The crumbling of the citadel began with Greenberg v. Lorenz, 9 N.Y.2d 195, 213 N.Y.S.2d 39, 173 N.E.2d 773 in which recovery was allowed an infant plaintiff for injuries caused by pieces of sharp metal found in a can ......
  • 39 A.D.2d 90, Singer v. Walker
    • United States
    • New York New York Supreme Court Appelate Division First Department
    • May 11, 1972
    ...(Turner v. Edison Storage Battery Co., 248 N.Y. 73, 74, 161 N.E. 423, 424.) The erosion of that concept began in Greenberg v. Lorenz, 9 N.Y.2d 195, 213 N.Y.S.2d 39, 173 N.E.2d 773. In that case the Court of Appeals allowed recovery by the infant plaintiff although it was her father who made......
  • 40 A.D.2d 289, Ciampichini v. Ring Bros., Inc.
    • United States
    • New York New York Supreme Court Appelate Division Fourth Department
    • January 18, 1973
    ...The pattern in New York has been to eliminate the privity requirement (1) with respect to food and beverages (Greenberg v. Lorenz, 9 N.Y.2d 195, 213 N.Y.S.2d 39, 173 N.E.2d 773); (2) when dealing with inherently and imminently dangerous products Page 293 (Thomas v. Winchester, 6 N.Y. 397; M......
  • Request a trial to view additional results
79 cases
  • 368 F.2d 713 (2nd Cir. 1966), 7, Mull v. Ford Motor Co.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • November 9, 1966
    ...that considerable caution is being exercised by the New York Courts regarding the expansion of warranty concepts. In Greenberg v. lorenz, 9 N.Y.2d 195, 200, 213 N.Y.S.2d 39, 42, 173 N.E.2d 773, 776, (1961), it was stated that the courts 'should be cautious to take one step at Page 718 a tim......
  • 32 N.Y.2d 330, Codling v. Paglia
    • United States
    • New York New York Court of Appeals
    • May 3, 1973
    ...(Turner v. Edison Stor. Battery Co., 248 N.Y. 73, 74, 161 N.E. 423, 424). The crumbling of the citadel began with Greenberg v. Lorenz, 9 N.Y.2d 195, 213 N.Y.S.2d 39, 173 N.E.2d 773 in which recovery was allowed an infant plaintiff for injuries caused by pieces of sharp metal found in a can ......
  • 39 A.D.2d 90, Singer v. Walker
    • United States
    • New York New York Supreme Court Appelate Division First Department
    • May 11, 1972
    ...(Turner v. Edison Storage Battery Co., 248 N.Y. 73, 74, 161 N.E. 423, 424.) The erosion of that concept began in Greenberg v. Lorenz, 9 N.Y.2d 195, 213 N.Y.S.2d 39, 173 N.E.2d 773. In that case the Court of Appeals allowed recovery by the infant plaintiff although it was her father who made......
  • 40 A.D.2d 289, Ciampichini v. Ring Bros., Inc.
    • United States
    • New York New York Supreme Court Appelate Division Fourth Department
    • January 18, 1973
    ...The pattern in New York has been to eliminate the privity requirement (1) with respect to food and beverages (Greenberg v. Lorenz, 9 N.Y.2d 195, 213 N.Y.S.2d 39, 173 N.E.2d 773); (2) when dealing with inherently and imminently dangerous products Page 293 (Thomas v. Winchester, 6 N.Y. 397; M......
  • Request a trial to view additional results