Schwartz v. Macrose Lumber & Trim Co.
| Decision Date | 10 April 1969 |
| Citation | 301 N.Y.S.2d 91,24 N.Y.2d 856,248 N.E.2d 920 |
| Parties | , 248 N.E.2d 920 Paul SCHWARTZ, Plaintiff-Appellant, v. MACROSE LUMBER & TRIM CO., Inc., et al., Defendants-Respondents-Appellants. WILMOD COMPANY, Inc., Defendant-Respondent and Third-Party Plaintiff- Appellant, v. NISSHO AMERICAN CORP., Third-Party Defendant-Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from Supreme Court, Appellate Division, Second Department, 29 A.D.2d 781, 287 N.Y.S.2d 706.
Sidney H. Bishop, Lynbrook, Samuel G. Rabinor, Jamaica (Albert S. Dranoff, Jamaica, on the brief), for plaintiff-appellant.
E. Edan Spencer, New York City (Walter Feller, New York City, of counsel), for defendants-respondents-appellants.
Barry McTiernan & Congdon, New York City (Roger P. McTiernan, Michael R. Treanor, New York City, of counsel), for defendant-respondent and third-party plaintiff-appellant.
Kamerman & Kamerman, New York City (Michael I. Begun, Murray H. Paloger, Henry B. Raff, New York City, of counsel), for third-party defendant-respondent-appellant.
Negligence and breach of warranty action by purchaser of a box of nails against retailer and supplier for an eye injury sustained when a nail allegedly shattered. Supplier impleaded distributor from which it had purchased nails.
The Supreme Court, Trial Term, Queens County, Part I, 50 Misc.2d 547, 270 N.Y.S.2d 875, entered a judgment in favor of plaintiff and third-party defendant moved to resettle the judgment to eliminate therefrom any claim over by third-party plaintiff. The Supreme Court, J. Irwin Shapiro, J., denied the motion, at 50 Misc.2d 1055, 272 N.Y.S.2d 227, and appeals were taken by defendants from certain parts of the judgment, and by third-party defendant from the entire judgment and order denying its motion to resettle the judgment.
The Appellate Division held that evidence was insufficient to demonstrate a causal relation between plaintiff's injury and asserted defect in the nails sold to him. The judgment was reversed and the complaint, cross claims and third-party complaint were dismissed.
Appeals were taken to the Court of Appeals. The plaintiff asserted that the only reasonable and probable inference to be drawn from the facts proven was that the injury to plaintiff's right eye was caused by the nail head shattering from the rest of the nail and striking his eye when he hammered it through the wooden stud into the concrete.
Order affirmed, without costs.
All concur except KEATING and BREITEL, JJ., who...
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