Turner v. Edison Storage Battery Co.

• Decision Date: 01 May 1928
• Citation: 248 N.Y. 73,161 N.E. 423
• Parties: TURNER v. EDISON STORAGE BATTERY CO.
• Court: New York Court of Appeals Court of Appeals

248 N.Y. 73

161 N.E. 423

TURNER

v.EDISON STORAGE BATTERY CO.

Court of Appeals of New York.

May 1, 1928.

Action by Philip Turner against the Edison Storage Battery Company. An order of the Special Term denying defendant's motion to compel plaintiff to elect and serve and amended complaint was reversed on law and facts, and motion granted by the Appellate Division (222 App. Div. 826, 226 N. Y. S. 394), and plaintiff appeals therefrom by permission.

Appeal dismissed.Appeal from Supreme Court, Appellate Division, Second department.

Ezra B. Kotcher and Benjamin Wieser, both of New York City, for appellant.

Roger Hinds, of New York City, for respondent.

POUND, J.

[1][2] The complaint alleges that the defendant is a manufacturer of storage batteries, and that plaintiff purchased from the Fisher Hardware Company a battery manufactured by the defendant. Plaintiff attempts to state two causes of action against the defendant, one in negligence (MacPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. 1050, L. R. A. 1916F, 696, Ann. Cas. 1916C, 440), and one for breach of warranty. In pleading the second cause of action, he alleges that defendant warranted the battery to be safe; that he relied on the warranty; and that injury was sustained by breach of warranty. Warranty is an incident of a sale. Levis v. Pope Motor Car Co., 202 N. Y. 402, 95 N. E. 815; Personal Property Law (Consol. Laws, c. 41), § 93. The complaint negatives a sale by the defendant to the plaintiff and any contractual relation between the plaintiff and the defendant. There can be no warranty where there is no privity of contract. A cause of action for breach of warranty, either express or implied, is not, and cannot be, stated. Chysky v. Drake Bros. Co., 235 N. Y. 468, 472, 139 N. E. 576, 27 A. L. R. 1533. The goods may have been sold to the Fisher Hardware Company with a so-called written and continuing warranty for the benefit of the ultimate purchaser. A cause of action for deceit conceivably might arise from such a transaction (Roberts v. Anheuser Busch Brewing Ass'n, 211 Mass. 449, 98 N. E. 95), or for negligent words (International Products Co. v. Erie R. Co., 244 N. Y. 331, 155 N. E. 662), but no suggestion is made of an attempt to plead such a cause of action.

[3] The motion is to require plaintiff to elect between causes of action claimed to be inconsistent (Civ. Prac. Act, § 258), and to strike out the cause of action not so elected (Rules Civil Practice, 102). The court has said, ‘to make out a misjoinder it is not necessary that the separate causes of action should have been well stated. It is enough that there was an attempt to state them.’ Cardozo, J., in Jacobus v. Colgate, 217 N. Y. 235, 247,111 N. E. 837, 841 (Ann. Cas. 1947E, 369). The argument is therefore made that the motion to compel an election was properly granted without regard to the sufficiency of the allegations of warranty. But the rule has never been applied to a case where it appears on the face of the complaint that the pleading of one of two causes of action is so incontrovertibly bad that the mere statement reveals its insufficiency without...