Schwartz v. Macrose Lumber & Trim Co.

• Decision Date: 25 July 1966
• Citation: 272 N.Y.S.2d 227,50 Misc.2d 1055
• Court: New York Supreme Court
• Parties: Paul SCHWARTZ, Plaintiff, v. MACROSE LUMBER & TRIM CO., Inc., Macrose Industries, Inc., Defendants. WILMOD COMPANY, Inc., Defendant and Third-Party Plaintiff, v. The NISSHO AMERICAN CORP., Third-Party Defendant.

Page 227

272 N.Y.S.2d 227

50 Misc.2d 1055

Paul SCHWARTZ, Plaintiff, v. MACROSE LUMBER & TRIM CO., Inc., Macrose Industries, Inc.,

Defendants.

WILMOD COMPANY, Inc., Defendant and Third-Party Plaintiff, v. The NISSHO AMERICAN CORP., Third-Party Defendant.

Supreme Court, Trial Term, Queens County, Part I.

July 25, 1966.

Sidney H. Bishop, Lynbrook, for plaintiff. (Samuel G. Rabinor, Jamaica, of counsel).

E. Edan Spencer, New York City, for Macrose Lumber & Trim Co., Inc. and Macrose Industries, Inc. (Frank Seitz, Jamaica, of counsel).

Raymond H. Branda, New York City, for defendant and third-party plaintiff. (Edward Shandell, New York City, of counsel).

Kamerman & Kamerman, New York City, for third-party defendant. (Michael I. Begun, New York City, of counsel).

J. IRWIN SHAPIRO, Justice.

My opinion in this case, handed down on June 3, 1966, appears in 50 Misc.2d 547, 270 N.Y.S.2d 875. The third-party defendant Nissho American Corp. (Nissho) now moves to resettle the judgment entered on my decision 'so as to eliminate therefrom the claim over by Wilmod Company, Inc. against the Nissho American Corp., and providing in lieu thereof that the third-party complaint of Wilmod, as third-party plaintiff, against Nissho, as third-party defendant, be dismissed with costs'.

Wilmod had purchased a quantity of nails (one of which was the defective nail which caused plaintiff's injury) from Nissho. The nails were manufactured by Amagasaki Nail Works, Ltd., not a party to this action. It packaged them in a box bearing the legend

'ONE POUND NET MFRD IN JAPAN FOR WILMOD CO. NYC'

Wilmod, after purchasing the nails from Nissho, sold them to various distributors one of whom sold the box containing the offending nail to defendants Macrose, retail hardware dealers. The latter sold it to plaintiff.

After finding in favor of plaintiff against defendants Macrose I allowed a recovery over by Macrose against Wilmod on the warranty cause of action saying that 'Wilmod, by detailing the specification for the nails and by then boxing them under its trade name, took such an active part in the manufacture that it must be held liable to the retailer, who has become liable to the purchaser, the plaintiff here, on the theory of breach of implied warranty.' (p. 555, 270 N.Y.S.2d p. 886). In connection with the claim of defendants Macrose against Wilmod on the theory of negligence I found that 'the negligence of Wilmod, which stands in the shoes of the manufacturer, is 'active' negligence'. (p. 559, 270 N.Y.S.2d p. 889).

Nissho now contends that having found Wilmod to be guilty of 'active' negligence I was in error in allowing it to recover over against Nissho on the theory of breach of implied warranty.

Succinctly stated the question thus presented by this motion is whether a purchaser (Wilmod) from a distributor (Nissho) who is held liable In negligence by the ultimate purchaser of the merchandise (plaintiff) and the retailer of the merchandise (Macrose) for selling a defectively manufactured article is barred from recovery over against his immediate distributor (Nissho) on a breach of warranty theory. In other words, does legal attribution to one of negligent conduct necessarily defeat his right to recover over for breach of warranty?

Many decisions in this State hold that the finding of negligence on the part of a claimant constitutes a complete defense against a warranty claim by him but an analysis of such decisions reveals that while the language of the opinions is couched in terms of 'negligence' or 'contributory negligence' the court, in each case, is really denying recovery because of plaintiff's or claimant's Abnormal use of the product, and not because of a basic defect in the product itself. The ratio decidendi underlying the cases is that the 'essential cause' of the accident is the deciding factor in whether a recovery is permissible.

In Natale v. Pepsi-Cola Co., 7 A.D.2d 282, 182 N.Y.S.2d 404, 407, the court stated at page 284:

The point is that defendant's liability depends solely upon a breach of the implied warrant of merchantability. If the essential cause of the occurrence was something other than the breach of the implied warranty, no matter what, the defendant is not liable.' (emphasis supplied.)

This was an action by the infant plaintiff for an injury sustained by a bursting soda bottle which the plaintiff said he was attempting to open on a metal hasp of a gate at a school. The sole ground of liability presented to the jury against the retailer was the alleged breach of implied warranty of merchantability of the product. The court (pp. 283--284, 182 N.Y.S.2d p. 406) held that on the issue of liability the charge of the trial court was too narrow.

'Since it eliminated from the jury's consideration the effect of the handling of the bottle between the time of purchase and the time of the occurrence. The charge concerned itself entirely with the handling of the bottle by the infant plaintiff immediately prior to the occurrence. However, there was evidence of the manner of its handling between the time of purchase and immediately prior to the occurrence which should have been submitted to the jury together with a charge conveying to them the fact that if the careless handling of the bottle between the time of its purchase and the time of the occurrence was an essential cause of the occurrence and injuries, then the plaintiff is not entitled to recover. Fredendall v. Abraham & Straus, Inc., 279 N.Y. 146, 18 N.E.2d 11.'

My original opinion in this case makes it crystal clear that the cause of plaintiff's injury was the original and basis defect in the manufacture of the nail. Applying the...