Tully v. Empire Equipment Corp.
| Decision Date | 12 July 1967 |
| Citation | 28 A.D.2d 935,282 N.Y.S.2d 322 |
| Parties | James TULLY, Appellant, v. EMPIRE EQUIPMENT CORP. and Universal Terminal & Stevedoring Corp., Respondents. EMPIRE EQUIPMENT CORP. and Universal Terminal & Stevedoring Corp., Third-Party Plaintiffs, v. UNITED STATES TRUCKING CORP., Third-Party Defendant. |
| Court | New York Supreme Court — Appellate Division |
(935) Before CHRIST, Acting P.J., and BRENNAN, HOPKINS, MUNDER and NOLAN, JJ.
MEMORANDUM BY THE COURT.
Judgment of the Supreme Court, Queens County, entered March 23, 1966, modified on the law and the facts, action severed and new trial granted as between plaintiff and defendant Empire Equipment Corp., with costs to abide the event. As so modified, judgment affirmed, without costs.
In this action to recover for personal injuries, plaintiff alleged separate causes of action, one for negligence and one for breach of implied warranty. The accident occurred when plaintiff, driving a hi-lo machine leased to his employer by the defendant Empire Equipment Corp. was unable to stop while descending a ramp at the New York Coliseum and crashed into a wall. Plaintiff's testimony and certain tests made immediately after the accident established uncontrovertedly that the brakes on the machine were defective. The machine had been delivered only two days before the accident, and it is thus reasonable to infer that this defect existed at the time of delivery (see Anno., 46 A.L.R.2d 409, 425). Defendants' motion to dismiss the warranty cause of action was, in our opinion, properly denied (see Hoisting Engine Sales Co. v. Hart, 237 N.Y. 30, 142 N.E. 342, 31 A.L.R. 536; Thomas v. Leary, 15 A.D.2d 438, 225 N.Y.S.2d 137, and cases there cited). However, we find error in the court's instructions to the jury with respect to breach of warranty. In substance, the court charged that one who leases a vehicle which is dangerous if defective is under a duty to use reasonable care to see that the vehicle is reasonably safe for its intended purpose, and that failure to do so constitutes negligence. The charge was couched entirely in terms of reasonable care and negligence, but warranty is not based on fault or want of care, and the jury should have been so instructed (see Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d 432, 437, 240 N.Y.S.2d 592, 595, 191 N.E.2d 81, 83; New York Pattern Jury Instructions, § 2:141, p. 261).
The judgment in favor of the codefendant is affirmed since there is no evidence that it warranted...
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...Arlen Realty & Dev. Corp., 95 A.D.2d 853, 464 N.Y.S.2d 214; Iadicicco v. Duffy, 60 A.D.2d 905, 401 N.Y.S.2d 557; Tully v. Empire Equip. Corp., 28 A.D.2d 935, 282 N.Y.S.2d 322; 1 Weinberger, New York Products Liability § 20:04). In this case, the defendants failed to offer any cogent reason ......
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Brandon v. Caterpillar Tractor Corp.
...also supports the inference that the defect existed at the time the product left the manufacturer's hands (see, Tully v. Empire Equip. Corp., 28 A.D.2d 935, 282 N.Y.S.2d 322; Weinberger, New York Products Liability § In the matter at bar, the product which is alleged to be defective was app......