Deeves v. Fabric Fire Hose Co.

• Decision Date: 11 January 1961
• Citation: 29 Misc.2d 136,210 N.Y.S.2d 903
• Parties: Harold DEEVES, Plaintiff, v. FABRIC FIRE HOSE COMPANY, Defendant.
• Court: New York Supreme Court

Page 903

210 N.Y.S.2d 903

29 Misc.2d 136

Harold DEEVES, Plaintiff, v. FABRIC FIRE HOSE COMPANY, Defendant.

Supreme Court, Westchester County.

Jan. 11, 1961.

Albertson, Simmons & Butler, New Rochelle, for plaintiff.

Arthur, Dry & Dole, New York City, for defendant.

JAMES D. HOPKINS, Justice.

The defendant moves to dismiss the second cause of action alleged in the complaint on the ground that it does not state facts sufficient to constitute a cause of action. That cause of action, briefly stated, alleges that the plaintiff, an employee of the City of New Rochelle, suffered personal injuries as a result of the bursting of fire hose purchased by the City from the defendant; that the injury occurred while the plaintiff was testing the hose under pressure prior to use in fighting fires; and that the defendant, both by express and implied warranties, had represented that the hose would stand a specified pressure, and those warranties had been breached in that the hose was defective and not in conformance with the warranties. Upon these allegations the plaintiff seeks recovery for his injuries.

A cause of action for breach of warranty ordinarily depends on a contractual relation between the parties to the action. A personal injury suffered by one not a party to the contract, even though an employee or agent of the buyer, may not be recompensed by suit against the seller based on breach of the contract, (Shoopak v. United States Rubber Co., 17 Misc.2d 201, 183 N.Y.S.2d 112, affirmed 10 A.D.2d 978, 202 N.Y.S.2d 250; Commissioners of State Insurance Fund v. Humm, Sup., 48 N.Y.S.2d 875, affirmed 269 App.Div. 657, 53 N.Y.S.2d 461; Galvin v. Lynch, 137 Misc. 126, 241 N.Y.S. 479). Reasons of public policy underlie this denial of the right of enforcing the contract, which is sometimes referred to as the absence of privity of contract. Parties to contracts bargain with an objective in view as between themselves; burdens or benefits to others are generally not within their contemplation; and the process of bargaining would be complicated if the contract could be enforced by third parties, (cf. Lorillard v. Clyde, 122 N.Y. 498, 25 N.E. 917, 10 L.R.A. 113). The rule refusing recovery to a nonparty to a contract for personal injury arising from a breach of warranty, whether express or implied, has been reiterated time and again, (Chysky v. Drake Bros. Co., Inc., 235 N.Y. 468, 139 N.E. 576, 27 A.L.R. 1533; Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802; Abrahams v. M. S. Berkoff Co., Inc., 2 A.D.2d 686, 152 N.Y.S.2d 591).

Two exceptions to the general rule have appeared: (1). A right of recovery has been permitted in cases involving breach of warranty arising out of sales of foodstuffs, where the injured person stood in close family relationship to the buyer (Bowman v. Great Atlantic & Pacific Tea Company, 284 App.Div. 663, 133 N.Y.S.2d 904, affirmed 308 N.Y. 780, 125 N.E.2d 165; Gimenez v. Great Atlantic & Pacific Tea Company, 264 N.Y. 390, 191 N.E. 27); (2). The class of cases characterized by the third party beneficiary principle. It is to the last exception that the plaintiff appeals to justify his cause of action.

The third party beneficiary doctrine has not been thus far extended to the facts at bar. None of the cases cited by the plaintiff permit recovery by an employee for personal injuries suffered from a breach of warranty contained in a contract between the employer and the defendant referring to the specification of quality of the article sold. The cases fall into three general categories: (1) where the contract expressly provided for payment of damages suffered by third parties, (Coley v. Cohen, 289 N.Y. 365...