Blessington v. McCrory Stores Corp.

305 N.Y. 140 | NY | 1953

Desmond, J.

Plaintiff sues as the administrator of his infant son, who, the complaint alleges, died on March 28, 1945, from burns he suffered on December 27,1944, when a “ cowboy suit ” he was wearing came into contact with a flame, and ignited. This, action was not commenced until March, 1948, more than three years after the accident, and the questions on this appeal are: Had any applicable Statute of Limitations, as to any cause of action or any defendant, run its course before such commencement? Damages are demanded, not for causing the boy’s death, but for his pain and suffering before death, so we are in no way concerned with section 130 of the Decedent Estate Law, and its self-contained two-year time limitation.

The amended complaint says that defendant Plenry was the manufacturer of the garment, that defendant Woonsocket furnished allegedly inflammable material of which part of the suit was made, that defendants comprising the Timme partnership were the selling agents for Woonsocket, and that defendant McCrory sold the suit to the infant’s mother for the infant’s use. Four causes of action are stated (the fourth by way of a motion made, and denied, below, to add a count to the amended complaint). Plaintiff now concedes that his second alleged cause of action is purely one in negligence, and that it was properly dismissed under the three-year limitation found in subdivision 6 of section 49 of the Civil Practice Act. As to the third cause of action in this amended complaint, we hold, without setting forth herein our analysis of its lengthy averments, that it, too, contains no more than an accusation that the defendants negligently caused the personal injuries, and so it, too, was properly dismissed as to all defendants, because, not sued on within three years from its accrual. Also, we agree with the decisions below that the fourth count, which plaintiff attempted to put into a further amended complaint sounds, essentially and solely, in negligence, and was required to be dismissed, by reason of the same three-year limitation.

That leaves for consideration the first cause, of action, for breach of an implied warranty of fitness for use (Personal Property Law, § 96, subd. 1), stated against the immediate vendor McCrory, alone. McCrory’s motion to dismiss was on the theory that such a suit is in reality one in negligence, and so should be governed by the three-year limitation. We think the motion was properly denied, and that the holding below was correct — that is, that, although such a breach of duty may rest upon, or be associated with, a tortious act, it is independent of negligence, and so such a cause of action gets the benefit of the six-year limit of subdivision 1 of section 48 of the Civil Practice Act, as being on an implied contract obligation or liability. There are no directly applicable decisions in this court, but there are at least two New York rulings (Schlick v. New York Dugan Bros., 175 Misc. 182, and Buyers v. Buffalo Paint & Specialties, 199 Misc. 764) that, since the claims in such a suit on a breach of an implied warranty are, as those courts thought, essentially those of negligence, the three-year statute applies. Courts of other States, in substantially similar situations, have taken the opposite view (see Challis v. Hartloff, 136 Kan. 823, 825, 826; Colonna v. Rosedale Dairy Co., 166 Va. 314, 324). Our own decisions tell us that, while an action for breach of a statutorily implied warranty of fitness may involve, incidentally, some showing of negligence, the contract breached is not merely one to use due care, but is a separate (implied) contract of guaranty that the goods are fit for the purpose for which they are sold and bought (Rinaldi v. Mohican Co., 225 N. Y. 70; Gimenez v. Great Atlantic & Pacific Tea Co., 264 N. Y. 390). Proof of negligence is unnecessary for recovery in such a suit (Rinaldi v. Mohican Co., supra, p. 75; see Deffebach v. Lansburgh & Bro., 150 F. 2d 591, certiorari denied 326 U. S. 772).

Precedents such as Webber v. Herkimer & Mohawk St. R. R. Co. (109 N. Y. 311), Hermes v. Westchester Racing Assn. (213 App. Div. 147), and Loehr v. East Side Omnibus Corp. (259 App. Div. 200, affd. 287 N. Y. 670) are not useful here. Those cases tell us that, where the wrong complained of is in truth negligence, and nothing else, the negligence suit time limitation cannot be escaped, and the contract limitation used, by means of allegation and proof of a contractual relationship between the parties, as where the plaintiff was a passenger on a common carrier when hurt, and sues on the contract of carriage. The particular reasoning of those cases applies only to instances Avhere the alleged breach of contract is failure to use due care — in other words, negligence. Since the common-law duty and the implied contractual obligation, in such situations, are one and the same, the suit, however labeled, is one in negligence, at least for time limitation purposes. Not so as to the first cause of action here, brought as it is on an alleged breach, independent of any negligence, of an implied warranty as to the condition of vended merchandise (see Goetten v. Owl Drug Co., 6 Cal. 2d 683; Schuler v. Union News, 295 Mass. 350, 353; Wadleigh v. Howson, 88 N. H. 365).

The orders appealed from should be affirmed, without costs, and all questions certified answered in the affirmative.

Loughran, Ch. J., Lewis, Conway, Dye, Fuld and Froessel, JJ., concur.

Orders affirmed, etc.