Thе court at Special Term declined to open a default suffered here apparently because it found that the complaint was obviously insufficient and its grounds of action could not prevail. The cause alleged is for loss of services of an infant daughter by her father, the infant’s injury which occasioned the loss of service having come about through her eating candy рurchased of defendant at one of its stores. The argument runs that since the father is not in privity with the dеfendant as a vendee of the goods, and since the nature of the action is for a breach of warranty of quality in the goods, a damage action for loss of services does not follow the injury. The learned court at Special Term took this view, stating in its order that “ there was no privity of contract between the plaintiff and defendant and the plaintiff could not recovеr if the default were opened.” This view conflicts with our Court of Appeals ruling in MacPherson v. Buick Motor Co. (
Cooley in his work on Torts (Vol. 1 [3d ed.], p. 156) says: ” Indeed, in many cases an action as for a tort or an action as for a breach of contrаct may be brought by the same party on the same state of facts. This, at first blush, may seem in contradiction to the definition of a tort, as a wrong unconnected with contract; but the principles' which sustain such actions will enable us to solve the seeming difficulty.
" If one by means of a false warranty is enabled to accomplish a sale of property, the purchaser may have his remedy upon the contract of warranty, or he may bring suit for the tort. The tort consists in his having been, by fraud and fаlsehood, induced to make the purchase. There is a broken contract, but there is alsо something more; there is deception to the injury of the purchaser in procuring the contrаct to be made.”
The legal duty to redress a wrong arising from a contract’s breach is outlined in аn early New York case: “ It is then doubtless true, that a mere contract obligation may establish no relation out of which a separate or specific legal duty arises, and yet extraneous circumstances and conditions, in connection with it, may establish such a relation as to make its performance a legal duty, and its omission a wrong- to be redressed. The duty and the tort grow оut of the entire range of facts of which the breach of the contract was but one.” (Finch, J., in Rich v. N. Y. C. & H. R. R. R. Co.,
Thе breach of the warranty resulting in damage to the infant may on reasonable implication give rise to an action for loss of services to the parent because of the actiоnable wrong whereby the infant’s capacity to render the services is diminished or totally impairеd.
The complaint to be sufficient did not need a notice under section 130 of the Personal Prоperty Law (as added by Laws of 1911, chap. 571). The notice there prescribed as necessаry has no relation to goods for immediate human consumption. The reason for the rule has nо relevant application to the circumstances of such a case. That séetion аpparently has to do with the sales of goods whose inspection or use discloses a dеfect of quality, lack of conformance to sample, failure to comply with description, or other
The order should be reversed, with ten dollars costs and disbursements, and the motion to open default granted on payment by plaintiff to defendant of thirty dollars trial fee, ten dollars costs of motion at Special Term, and the necessary disbursements on entering the judgment.
Clabke, P. J., Dowling, Smith and Meebell, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and motion granted on payment by plaintiff to the defendant of thirty dollars trial fee, ten dollars losts of motion at Special Term, and the necessary disbursements on entering the judgment.