Conklin v. Hotel Waldorf Astoria Corp.

Decision Date29 March 1957
Citation5 Misc.2d 496,161 N.Y.S.2d 205
PartiesMyra N. CONKLIN, Plaintiff, v. HOTEL WALDORF ASTORIA CORPORATION, Defendant.
CourtNew York City Court

Joseph Brill, New York City, for plaintiff.

Lawless & Lynch, New York City, for defendant.

STARKE, Justice.

This case was tried with a jury. Plaintiff sued for breach of warranty and the defendant contended there was a lack of privity between the plaintiff and the defendant.

The following facts were conceded: Plaintiff was invited as a guest of a friend to lunch in the Peacock Alley Restaurant of the Hotel Waldorf. During the course of eating her lunch, plaintiff bit into a roll and sustained certain injuries due to a piece of glass concealed and imbedded in the roll. Plaintiff's friend signed the luncheon check and paid for the lunch for herself as well as for the plaintiff. Plaintiff did not reimburse her friend for the cost of the meal.

Defendant rested at the end of plaintiff's case and moved for a dismissal of the complaint, which motion was denied. Both sides then moved for a directed verdict. The court directed a verdict for the plaintiff and asked the jury to assess damages, albeit in an advisory capacity, for by consent determination of the question of damages was left for the court. The jury recommended the sum of $1,415 in favor of the plaintiff, and the court took the recommendation under advisement. Decision was also reserved on the renewed motion by the defendant to dismiss the complaint as a matter of law, with ten days for briefs to both sides.

Defendant contends that plaintiff cannot be successful on the breach of warranty theory because there was no privity or contractual relationship between the plaintiff and the defendant under section 96, subdivision 2, of the Personal Property Law. Defendant claims that plaintiff is not to be deemed the 'purchaser' because her friend paid the check. Defendant further urges that plaintiff's remedy was in negligence instead of in contract and that plaintiff has made the wrong election. In support thereof, reliance is primarily placed on Chysky v. Drake Brothers Company, 1923, 235 N.Y. 468, 139 N.E. 576, 27 A.L.R. 1533, which holds that an implied warranty cannot be claimed by a third person; Redmond v. Borden's Farm Products Co., Inc., 1927, 245 N.Y. 512, 157 N.E. 838; Smith v. Hanson, 1929, 2d Dept., 228 App.Div. 634, 238 N.Y.S. 86; Dickinson v. Sperling, N.Y.City Court, 1936, 158 Misc. 905, 286 N.Y.S. 934; Prinsen v. Russos, 1927, 194 Wis. 142, 215 N.W. 905, where plaintiff's friend paid the check; Bourcheix v. Willow Brook Dairy, Inc., 268 N.Y. 1, 196 N.E. 617, 98 A.L.R. 1492; Zotto v. Merkel Brothers, Inc., 229 App.Div. 793, 242 N.Y.S. 749; Block v. Empire State Doughnut Corporation, 233 App.Div. 774, 250 N.Y.S. 440; Gimenez v. Great Atlantic & Pacific Tea Company, 1934, 264 N.Y. 390, 191 N.E. 27.

The sole issue is whether plaintiff should be barred from recovery in a breach of warranty action because her friend paid the check.

Food consumed on or off the premises in New York is considered a sale of food and not merely a service provided by a restaurant. This was so held for the first time in New York in 1924, when the Court of Appeals, in Temple v. Keeler, 238 N.Y. 344, 144 N.E. 635, 35 A.L.R. 920, decided that a restaurant sells the food which it provides for its guests. The court did not then rule as to 'when exactly does the contract of sale take place?'

In order to determine whether there was privity between the plaintiff and the defendant, let us examine these questions: When was the contract formed? When were the obligations of the respective parties created?

A contractual relationship existed between the plaintiff and the defendant long before payment of the restaurant check. The contract did not first come into being when the check was paid. An implied contract was formed when plaintiff and her friend became patrons of the restaurant, placed their orders for food and their orders were accepted. At that moment, an implied obligation on the part of both the plaintiff and her friend was individually created to pay for whatever was individually ordered. Simultaneously, the defendant impliedly agreed to serve each of them food fit for human consumption. The warranty arose then and ran to both of them. The warranty does not run only to the one who eventually pays the check. The actual payment of the check does not determine the time when the contract comes into being.

Even if plaintiff's friend placed the order, the hotel knew it was serving an order for two persons. When one person undertakes to give the order for several people, that person is acting as the agent for the others. Which person pays the check and whether they reimburse each other or not is only a matter of private arrangement between the customers themselves. This is of no concern to the restaurateur as long as he is paid. The plaintiff and her friend relied on defendant's implied promise to serve each of them with fit and wholesome food. Consequently, it makes no difference whether the plaintiff or her friend paid the check. Thus the Court of Appeals, per Cardozo, J., held, in Glanzer v. Shepard, 233 N.Y. 236, 239, 135 N.E. 275, 276, 23 A.L.R. 1425: 'We do not need to state the duty in terms of contract or of privity. Growing out of a contract, it has none the less an origin not exclusively contractual. Given the contract and the relation, the duty is imposed by law. Cf. MacPherson v Buick Motor Co., 217 N.Y. 382, 390, 111 N.E. 1050, L.R.A.1916F, 696. There is nothing new here in principle. If there is novelty, it is in the instance only. One who follows a common calling may come under a duty to another whom he serves, though a third may give the order or make the payment.'

The third-party beneficiary rule may very well be applied here. Continuing with Glanzer v. Shepard, supra, Judge Cardozo said, 233 N.Y. on page 241, 135 N.E. on page 277: 'We state the defendants' obligation, therefore, in terms, not of contract merely, but of duty. Other forms of statement are possible. They involve, at most, a change of emphasis. We may see here, if we please, a phase or an extension of the rule in Lawrence v. Fox, 20 N.Y. 268, as amplified recently in Seaver v. Ransom, 224 N.Y. 233, 120 N.E. 639, 2 A.L.R. 1187. If we fix our gaze upon that aspect, we shall stress the element of contract, and treat the defendants' promise as embracing the rendition of a service, which, though ordered and paid for by one, was either wholly or in part for the benefit of another. DeCicco v. Schweizer, 221 N.Y. 431, 117 N.E. 807, L.R.A.1918E, 1004; Rector, etc., St. Mark's Church v. Teed, 120 N.Y. 583, 24 N.E. 1014.'

Assume that plaintiff's friend had said to plaintiff: 'You paid for the lunch last week. So I'll pay today.' Or assume that the plaintiff, in accepting her friend's invitation to lunch, had said: 'All right, you pay for the lunch and I'll pay for the theatre tickets.' Would either of these suppositions change the respective obligations of both the patron and the restaurateur?

Assume that plaintiff and her friend had...

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8 cases
  • Parish v. Great Atlantic & Pacific Tea Co.
    • United States
    • New York City Municipal Court
    • June 24, 1958
    ...privity issue raised here in of broader significance than in Conklin v. Hotel Waldorf Astoria Corp. (decided by this Court in 5 Misc.2d 496, 161 N.Y.S.2d 205), where the injured plaintiff (as here) was not the 'buyer', but the guest of her friend who paid the check, and it was likewise chai......
  • Sofman v. Denham Food Service, Inc.
    • United States
    • New Jersey Supreme Court
    • May 7, 1962
    ...Zorinsky v. American Legion, Omaha Post No. 1, 163 Neb. 212, 79 N.W.2d 172 (Sup.Ct.1956); Conklin v. Hotel Waldorf Astoria Corp., 5 Misc.2d 496, 161 N.Y.S.2d 205 (N.Y.City Ct.1957); Arnaud's Restaurant, Inc. v. Cotter, 212 F.2d 883 (5 Cir.1954), cert. den. 348 U.S. 915, 75 S.Ct. 295, 99 L.E......
  • Monaco v. Chrysler Sales Corporation
    • United States
    • U.S. District Court — Southern District of New York
    • February 20, 1961
    ...unsupportable. These attempts are exemplified by the following lower court cases: Conklin v. Hotel Waldorf Astoria Corporation, City Court, New York County 1957, 5 Misc.2d 496, 161 N.Y.S.2d 205; Parish v. Great Atlantic & Pacific Tea Company, City Court, New York County 1958, 13 Misc.2d 33,......
  • Bronson v. Club Comanche, Inc.
    • United States
    • U.S. District Court — Virgin Islands
    • June 29, 1968
    ...Kenower v. Hotels Statler Co., 6 Cir. 1942, 124 F.2d 658. 3 Restatement 2d, Torts § 402A(2) (a). 4 Conklin v. Hotel Waldorf Astoria Corporation, 1957, 5 Misc.2d 496, 161 N.Y.S. 2d 205; Restatement 2d, Torts, § 402A (2) 5 Restatement 2d, Torts, § 402A, Comment n; Louisville & N. R. Co. v. Tr......
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