Abounader v. Strohmeyer & Arpe Co.

• Decision Date: 16 November 1926
• Citation: 154 N.E. 309,243 N.Y. 458
• Parties: ABOUNADER v. STROHMEYER & ARPE CO.
• Court: New York Court of Appeals Court of Appeals

243 N.Y. 458

154 N.E. 309

ABOUNADER

v.STROHMEYER & ARPE CO.

Court of Appeals of New York.

Nov. 16, 1926.

Action by Naman J. Abounader against the Strohmeyer & Arpe Company. From an order of the Appellate Division (217 App. Div. 43,215 N. Y. S. 702), affirming an order of the Special Term, denying defendant's motion to dismiss the complaint, defendant by permission appeals.

Order affirmed, and certified question answered.

See, also, 211 App. Div. 167, 206 N. Y. S. 586.

The following questions were certified:

‘(1) Does the amended complaint herein set forth facts sufficient to constitute a cause of action?

‘(2) Can plaintiff be permitted under this amended complaint to recover damages sustained by reason of defendant's alleged violations of a duty or duties imposed upon defendant by the Farms and Markets Law?

‘(3) Should the motion to dismiss the amended complaint upon the pleadings and the admissions of the plaintiff have been granted?’Appeal from Supreme Court, Appellate Division, Fourth Department.

George Gray Zabriskie, of New York City, for appellant.

Smith Johnson, of Utica, for respondent.

HISCOCK, C. J.

This appeal involves a challenge to the sufficiency of the complaint. The substantial and pertinent allegations of that pleading are to the effect that the plaintiff, a dealer in groceries, oils, etc., purchased from an intermediate wholesale dealer certain containers of olive oil which had been put up and sold by the defendant; that the latter had placed a label upon each container representing that it contained one-fourth of a gallon of such oil, whereas the contents were actually less than that amount; that plaintiff made his purchases in reliance upon this label and representation, and after they had been purchased inspectors of the department of farms and markets discovered that he was offering for sale containers containing less than the amount of oil represented thereon, and he was threatened with prosecution for the collection of penalties by reason of such facts; that he was compelled to employ counsel to defend himself against expense; and that ecution at a substantial expense; and that in addition his reputation as a merchant was greatly damaged.

The plaintiff bases his claim to a recovery under these circumstances upon certain sections of the Farms and Markets Law (Consol. Laws, c. 69), of which those which are important may be summarized. Section 194 provides that in the case of such containers as these were ‘the net quantity of the contents of each container shall be plainly and conspicuously marked, branded or otherwise indicated on the outside or top thereof.’ Section 188 provides:

‘No person * * * shall * * * knowingly deliver less of any * * * commodity or article of merchandise than the quantity he represents. * * * The delivery by any person of a lesser quantity of any commodity or article of merchandise than the quantity he represents is presumptive evidence of knowledge by such person that the quantity delivered was less than the quantity he represented.’

Section 196 is entitled, ‘Guaranty Furnished by Wholesaler, Jobber or Manufacturer,’ and provides:

‘The name appearing on the container and the marking as provided by next to the last preceding section [section 194] shall be deemed to constitute a guaranty.’

[1] The first question which we encounter is the one whether the plaintiff by his complaint has attempted to state a cause of action exclusively based based on the theory of a warranty; it being claimed by the defendant that he cannot succeed on such a theory, because of lack of privity between him and the defendant, his purchases having been made, not from the latter, but from an intermediate dealer. While there is considerable basis for the claim that plaintiff did attempt to state such a cause of action, and did with much frequency apply the terms ‘warrant’ and ‘warranty’ to the representations placed by defendant on the containers, I think that this was due to a confused and inexact use of words, rather than to an intent to confine his cause of action to a technical theory of warranty. The complaint does set forth with fair accuracy and completeness the facts upon which plaintiff relies and I believe that the words referred to, when interpreted in the light of all of the allegations of the complaint, are to be construed as alleging that the defendant stated or represented, for the purposes of sale within the statute, that the containers held a certain amount of oil. It may be that, under the provisions of section 196 already referred to, that ‘the name appearing on the container and the marking as provided * * * shall be deemed to constitute a guaranty,’ an action might be based upon warranty. But no reference is made to this section in support of the complaint, and therefore its provisions do not tend to create any inference that the pleader was trying to state a cause of action in warranty rather than one based generally on a violation of the provisions which have been summarized.

[2] Placing this construction upon the complaint, we come to the second and more important question, whether the statute confers a right of action upon an ultimate purchaseragainst the person who originally prepared for market and sold the containers with false labels or statements of their contents, even though there were intermediate dealers, and no privity between the last purchaser and the first vendor. Of course, no one doubts that the statute by express provision might give to an ultimate purchaser of falsely labeled containers, however remote, a right of action against the person who violated the statute by marketing them with false labels. In the absence of such express provision, the question becomes one of the intent of the Legislature in passing the statute. If it was its intent to impose the duty defined in the provisions of a statute for the benefit of the general public, and any member thereof who, as in this case, might be misled by false labels, then, as we shall see, a right of action would be raised in behalf of such purchaser who had been injured by violation of the duty. It seems to me to be obvious that such was the intent of the Legislature in adopting this statute.

As one of its first provisions, the Farms and Markets Law, of which the provisions which we have quoted are part, declares that:

‘The production, manufacturing, marketing, storing and distribution of food, and of all the instrumentalities used in the production thereof, * * * are matters of public interest and proper subjects for investigation, encouragement, development and regulation by the state to secure an abundant supply of pure and wholesome food, to protect the health of the inhabitants of the state, to secure the exchange of such food and instrumentalities upon a fair basis * * * to prevent frauds in the traffic therein.’ Section 3.

So here at the very outset we find a declaration, which really was almost unnecessary in view of the character of the statute, that it was for the protection of the ‘inhabitants of the state.’ Then many of the articles which follow this declaration deal solely with the subject of foods, and the particular article in question associates with the provisions which we have quoted other provisions dealing with that subject. Thus, under any sensible interpretation, it clearly appears that in the enactment of the statute as a whole the Legislature had in mind the purpose of protecting the members of the public...