263 A.D. 1054 | N.Y. App. Div. | 1942
Judgments and orders reversed on the law and facts and a new trial granted, with costs to the plaintiff-appellant to abide the event. Memorandum: The verdict of no cause for action was clearly against the weight of the evidence and should have been set aside. The facts, not in dispute, required a holding, as matter of law, that the defendant John Lucas & Co., Inc., although it was not the manufacturer thereof, impliedly warranted that the machine which it leased to the plaintiff was reasonably safe and suitable for the use intended. (Hoisting Engine Sales Co. v. Hart, 237 N. Y. 30; Hansen v. Adams Grease Gun Corp., 254 App. Div. 633; affd., 278 N. Y. 687.) The court, however, submitted that question to the jury as one of fact. This was error which we can review, in the interests of justice, although no exception was taken by the plaintiff to the submission. (Civ. Prae. Act, § 583, subd. 2.) A dealer, as well as a manufacturer, may be held liable for concealed defects. (Ryan v. Progressive Grocery Stores, 255 N. Y. 388, 394.) If the jury found that the tank exploded because gasoline, and not kerosene, was used as fuel, such a holding would have no support in the evidence. The searing of the tank could have been the result of heat generated by kerosene as well as by gasoline. The circular (Exhibit 1) put out by the Hyde Manufacturing Company describing the machine contains the following: