Leahy v. Essex Co.

148 N.Y.S. 1063 | N.Y. App. Div. | 1914

Kellogg, J.:

This action was brought to recover damages for the breach of an implied warranty on the sale of food for immediate consumption. The evidence showed that the plaintiff, immediately after eating her luncheon at the defendant’s lunch room, was taken violently sick, and was suffering from food poisoning. She lunched at about twelve-thirty, eating some toast, a part of a piece of chocolate pie and drinking some tea. The pie seemed of an unusual color and taste. She never before had eaten a piece of chocolate pie that had the same taste; . she, therefore, ate only about one-half the piece purchased. At one-thirty she was taken violently sick. That morning she had eaten an orange and drank a cup of cocoa, and during the forenoon she drank a glass of water, and the night before had eaten a hearty meal. The county judge dismissed the complaint upon the ground that it could not be determined with reasonable certainty that the food poisoning was caused by the food purchased of the defendant. It appeared that after the ingestion of milk, or milk compound, the symptoms of food poisoning would appear from within a few minutes to five or six hours. The evidence was sufficient to enable the jury to determine that the plaintiff was suffering from food poisoning, and that the food pm-chased of the defendant was the cause thereof. The ease was, therefore, improperly taken from the jury. In Race v. Krum,, decided by this court in March, 1914 (162 App. Div. 911), in which a motion for a reargument was denied by a memorandum handed down by the court at the May term (163 App. Div. 924), we held that there was an implied warranty in the sale of food under somewhat similar circumstances. The judgment is, therefore, reversed and a new trial granted, with costs to the appellant to abide the event. All concurred. Judgment reversed and new trial granted, with costs to appellant to abide event.