162 N.E. 84 | NY | 1928
Plaintiff operates an extensive duck farm on the south shore of Long Island. Defendant manufactures a brand of poultry feed known as meat scrap. It consists of scraps of meat procured from butcher shops, seasoned and ground and sifted through a screen, then packed in bags and sold to retail dealers. From such a dealer plaintiff purchased large quantities and upon it fed its ducks. Several thousand died. This high mortality was traced to the presence in the feed of fine particles of steel wire which had been fastened by butchers to the meat and, still attached to the scraps, *296 was ground with them. The question is presented whether in the absence of privity between the manufacturer and the ultimate purchaser, plaintiff can recover.
Theories based upon common-law rules of negligence need not now be considered. An answer to the question whether the doctrine of common-law negligence founded upon the principles applied in such decisions as Thomas v. Winchester (
The Farms and Markets Law (Cons. Laws, ch. 69) controls this case. Section 130 prohibits the sale of any concentrated commercial feeding stuffs containing any substances injurious to the health of animals, and section 128 defines "concentrated commercial feeding stuffs" as including ground "beef" or fish scraps and "all other materials of a similar nature." The meat scraps sold by defendant and fed to plaintiff's poultry are alleged in the complaint to be "Red X Brand Meat Scraps." Throughout the trial reference was usually made to them as such, yet on several occasions, without objection by defendant, they were described as "beef" scraps. The scraps of meat of which the feed was composed were gathered indiscriminately from a thousand shops. A proportion of this meat must have been beef. Even if the proportion *297
of beef to the other meats were low, the material in the finished product, being meat, was of a similar nature to ground beef scrap. The feed falls within the type of food defined by sections 128 and 130. It was proved to be injurious to the health of animals and, therefore, its sale was prohibited. Violation of the duty to refrain from the sale of this feed as imposed by section 130 constitutes negligence as matter of law and any one having a special interest in the performance of that duty may sue for a breach. (Willy v. Mulledy,
The judgment of the Appellate Division should be reversed and that of the Trial Term affirmed, with costs in the Appellate Division and in this court.
CARDOZO, Ch. J., CRANE, ANDREWS, LEHMAN and KELLOGG, JJ., concur; POUND, J., not sitting.
Judgment accordingly. *298