Chysky v. Drake Bros. Co.

Decision Date17 April 1923
Citation235 N.Y. 468,139 N.E. 576
PartiesCHYSKY v. DRAKE BROS. CO., Inc.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Action by Bertha Chysky against the Drake Bros. Company, Inc. From an order of the Appellate Division (201 App. Div. 864,192 N. Y. Supp. 902), unanimously affirming a judgment for plaintiff, defendant appeals by permission.

Reversed, and complaint dismissed.

Hogan, J., dissenting.Appeal from Supreme Court, Appellate Division, First Department.

George F. Hickey and William Butler, both of New York City, for appellant.

Henry Levis and Morris Kohn, both of New York City, for respondent.

Allen R. Campbell and Ellwood M. Rabenold, both of New York City, for New York State Wholesale Bakers' Association, amicus curiae.

McLAUGLIN, J.

The plaintiff was employed as a waitress in a lunch room run by one Abraham, for which she was paid $30 a week and furnished board and lodging. On the 4th of May, 1918, she received from her employer, as part of her lunch, a piece of cake which had been made and sold to him by defendant. While she was eating it, a nail baked into the cake in such a way that it could not be discovered by inspection, stuck in her gum, which became so infected as to necessitate the removal of three of her teeth. She brought this action against the maker of the cake to recover the damages alleged to have been sustained, upon the theory it was liable to her, since it had impliedly warranted, when the cake was sold, that it was fit for human consumption, and that such implied warranty inured to her benefit. This was the cause of action alleged in the complaint, as amplified by the bill of particulars, and this was the theory upon which the action was tried and submitted to the jury. She had a verdict, and the judgment entered thereon was unanimously affirmed by the Appellate Division. Appeal to this court followed.

In Race v. Krum, 222 N. Y. 410, 118 N. E. 853, L. R. A. 1918F, 1172, we held that accompanying all sales by a retail dealer of articles of food for immediate use there is an implied warranty that the same is fit for human consumption. We did not consider or pass upon, as will appear from the opinion whether such a warranty existed in the case of hotel proprietors or those engaged in a similar business. The cause of action arose before section 96 of the Personal Property Law took effect. Consol. Laws, c. 41. In the present case the cause of action arose after the section took effect. This section provides that--

‘There is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows:

‘1. Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.’

If there be any liability, therefore, it must be under this section, and the jury was so intructed.

In Rinaldi v. Mohican, 225 N. Y. 70, 121 N. E. 471, where the cause of action arose after the section of the Personal Property Law quoted took effect, we held:

‘That the mere purchase by a customer from a retail dealer in foods of an article ordinarily used for human consumption does by implication make known to the vendor the purpose for which the article is required. Such a transaction standing by itself permits no contrary inferences.’

[1] Under the section of the Personal Property Law referred to and the Rinaldi Case, an action may be maintained to recover damages caused by the breach of an implied warranty in the sale of food to a consumer for immediate consumption. Whether this warranty extends to a wholesaler was expressly reserved in the Rinaldi Case, but is now squarely presented.

[2][3][4] The plaintiff received the cake from her employer. By reason of its condition it was not fit for human consumption. Her employer bought the cake from the defendant. Is it liable to the plaintiff for the injury sustained? We do not think so. If there were an implied warranty which inured to the benefit of the plaintiff it must be because there was some contractual relation between her and the defendant, and there was no such contract. She never saw the defendant, and, so far as appears,...

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56 cases
  • Pelletier v. Dupont
    • United States
    • Maine Supreme Court
    • March 3, 1925
    ...70 A. 314, 19 L. R. A. (N. S.) 923; Freeman v. Schultz Bread Co., 100 Misc. Rep. 528, 163 N. Y. S. 396; Chysky v. Drake Bros. Co., 235 N. Y. 468, 139 N. E. 576, 27 A. L. R. 1533; Boyd v. Coco-Cola Bottling Co., 132 Tenn. 23, 177 S. W. 80; Watson v. Augusta Brewing Co., 124 Ga. 121, 52 S. E.......
  • Parish v. Great Atlantic & Pacific Tea Co.
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    ...can be no breach of warranty unless there is privity of contract' still represents the law of this state (Chysky v. Drake Bros. Co., 1923, 235 N.Y. 466, 139 N.E. 576, 27 A.L.R. 1533; Redmond v. Borden's Farm Products, supra; Turner v. Edison, 1928, 248 N.Y. 73, 161 N.E. 423; Ryan v. Progres......
  • Hunter-Wilson Distilling Co. v. Foust Distilling Co.
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    • U.S. District Court — Middle District of Pennsylvania
    • June 24, 1949
    ...law, whichever is applied. As to New York, see Levis v. Pope Motor Car Co., 202 N.Y. 402, 95 N.E. 815; Chysky v. Drake Bros. Co., Inc., 235 N.Y. 468, 139 N.E. 576, 27 A.L.R. 1533; and see Ketterer v. Armour & Co., 2 Cir., 1917, 247 F. 921, L.R.A. 1918D, 798; Heggblom v. John Wanamaker, 178 ......
  • Jacob E. Decker & Sons, Inc. v. Capps
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    • July 22, 1942
    ...Flaccomio v. Eysink, 129 Md. 367, 100 A. 510; Pelletier v. Dupont, 124 Me. 269, 128 A. 186, 39 A. L.R. 972; Chysky v. Drake Brothers Co., 235 N.Y. 468, 139 N.E. 576, 27 A.L.R. 1533; Redmond v. Borden's Farm Products Co., 245 N.Y. 512, 157 N.E. 838; Tomlinson v. Ballard & B. Co., 208 N.C. 1,......
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