Funk v. Kaiser-Frazer Sales Corp.
| Decision Date | 12 April 1965 |
| Docket Number | KAISER-FRAZER |
| Citation | 23 A.D.2d 771,258 N.Y.S.2d 553 |
| Parties | Nathan A. FUNK and Elsa Funk, Appellants, v.SALES CORPORATION, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Saul Grover Wlodaver, New York City, for appellant; David S. Kapell, New York City, of counsel.
Terhune, Gibbons & Mulvehill, New York City, for respondent; Patrick E. Gibbons, New York City, of counsel.
Before UGHETTA, Acting P. J., and BRENNAN, HILL, RABIN and HOPKINS, JJ.
MEMORANDUM BY THE COURT.
In an action by a husband and a wife to recover damages by reason of personal injury sustained by the wife when her head struck the windshield of their automobile, the plaintiffs appeal from a judgment of the Supreme Court, Nassau County, entered March 9, 1962 after a jury trial, upon the court's oral decision at the close of the plaintiffs' case, which dismissed their complaint.
Judgment reversed on the law, with costs to plaintiffs, and new trial granted. No questions of fact were considered.
In their amended complaint the plaintiffs alleged a cause of action based upon defendant's breach of the warranty claimed to have been made by it to the plaintiffs when the plaintiff husband purchased the automobile, namely: that the automobile was equipped with a 'safety windshield' which, upon impact, would push out, thus preventing injury.
In our opinion, the plaintiffs presented sufficient evidence to go to the jury on the question of the defendant's connection with the sale of the automobile and the representations made concerning it. We also note that a plaintiff is no longer limited to express representations made in the contract; he may now reasonably rely upon representations made by a seller through mass media advertisement (Randy Knitwear, Inc. v. American Cyanamid Co., 11 N.Y.2d 5, 226 N.Y.S.2d 363, 181 N.E.2d 399). [For prior appeal, see 15 A.D.2d 548, 222 N.Y.S.2d 711.]
To continue reading
Request your trial
-
Woodruff v. Clark County Farm Bureau Co-op. Ass'n
...(Mo.App.1964), 377 S.W.2d 476; Brown v. Globe Laboratories, Inc. (1957) 165 Neb. 138, 84 N.E.2d 151; Funk v. kaiser-Frazer Sales Corp. (1965) 23 A.D.2d 771, 258 N.Y.S.2d 553; Compton v. M. O'Neil Co., (1955) 101 Ohio App. 378, 139 N.W.2d 635; Farmers Co-op. Elevator Co. v. Anderson, (Okl.19......
-
Strauss v. Long Island Sports, Inc.
...183 N.Y. 78, 85, 75 N.E. 1098, 1100; Friedman v. Medtronic, Inc., 42 A.D.2d 185, 190, 345 N.Y.S.2d 637, 643; Funk v. Kaiser-Frazer Sales Corp., 23 A.D.2d 771, 258 N.Y.S.2d 553; 24 N.Y.Jur., Fraud and Deceit, §§ 157-160; 47 N.Y.Jur., Products Liability, §§ 82-83). It is true that the languag......
-
Wiltshire v. A. J. Robins Co., Inc.
...from media advertising (Randy Knitwear v. American Cyanamid Co., 11 N.Y.2d 5, 226 N.Y.S.2d 363, 181 N.E.2d 399; Funk v. Kaiser-Fraser Sales Corp., 23 A.D.2d 771, 258 N.Y.S.2d 553). The breach could not necessarily be ascertained upon tender and delivery of the device (Unitron Graphics v. Me......
-
Pfeiffer v. Empire Merchandising Co.
...affirmed, with costs to respondent. The question of defendant's liability was properly submitted to the jury (Funk v. Kaiser-Frazer Sales Corp., 23 A.D.2d 771, 258 N.Y.S.2d 553; Spiegel v. Saks 34th St., 43 Misc.2d 1065, 252 N.Y.S.2d 852, aff'd 26 A.D.2d 660, 272 N.Y.S.2d 972). The Trial Ju......