Simpson v. Eichenbrunner
| Decision Date | 13 July 1961 |
| Citation | 217 N.Y.S.2d 678,31 Misc.2d 958 |
| Court | New York Supreme Court — Appellate Term |
| Parties | Leroy SIMPSON, Plaintiff-Respondent, v. Leo EICHENBRUNNER, d/b/a Leo's Hardware & Supply Co., and H. D. Hudson Mfg. Co., Inc., Defendants-Appellants. Leo EICHENBRUNNER, d/b/a Leo's Hardware & Supply Co, Defendant-Appellant and Third Party Plaintiff-Appellant, v. A. FLOHR CO., Inc., and H. D. Hudson Mfg. Co., Inc., Third Party Defendant- Appellant. A. FLOHR CO., Inc., Third Party Defendant-Appellant, v. H. D. HUDSON MFG. CO., Inc., Defendant-Appellant. |
Branda Fryer Lysaght & Peterson, New York City, John C. Corbett, Brooklyn, of counsel, for appellant H. D . Hudson Mfg. Co., Inc.
Leinwand, Grossman & Maron, New York City, Milford D. Gerton, New York City, of counsel, for appellant A. Flohr & Co., Inc.
Calvin Polivy, New York City, for appellant Leo Eichenbrunner etc .
Finn, Rebecchi, Winnie & Matis, New York City, Raymond Rebecchi, New York City, of counsel, for respondent Simpson.
Before HOFSTADTER, J. P., and HECHT and AURELIO, JJ.
Plaintiff has established a prima facie case of breach of warranty. Although the plaintiff's employer rather than the plaintiff was the legal purchaser of the machine, the plaintiff comes within the extension of the rule of privity as laid down in Greenberg v. Lorenz, 9 N.Y.2d 195, 213 N.Y.S.2d 39, as between plaintiff and the defendant Leo Eichenbrunner, d/b/a Leo's Hardware & Supply Co. However, there was no privity of contract between plaintiff and the H. D. Hudson Mfg. Co., Inc., manufacturer of the machine, or between the defendant third-party plaintiff Leo Eichenbrunner, d/b/a Leo's Hardware & Supply Co., and the manufacturer H. D. Hudson Mfg. Co., Inc.; nor was there any proof of negligence on the part of the manufacturer, H. D. Hudson Mfg. Co., Inc. There was, therefore, no basis for a judgment against the manufacturer in favor of either the plaintiff or the defendant Leo Eichenbrunner d/b/a Leo's Hardware & Supply Co.
Judgment modified so as to delete therefrom so much thereof as awards recovery in favor of the plaintiff against H. D. Hudson Mfg. Co., Inc., and in favor of the defendant Leo Eichenbrunner, d/b/a Leo's Hardware & Supply Co., against the defendant H. D. Hudson Mfg. Co., Inc., and as modified affirmed, without costs.
All concur.
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