146 N.Y.S. 197 | N.Y. App. Div. | 1914
(dissenting): Originally two causes of action were alleged in the complaint, one based upon negligence, the other upon a breach of warranty, the latter being the one which was sent to the jury and upon which the verdict in favor of the plaintiff was found. The cause of action surviving is based upon a complaint which alleges upon information and belief that at “all the times hereinafter mentioned the defendant was the proprietor, engaged in the business of carrying on a drug store,” and that the defendant “ as a part of his said business, had in his said drug store a counter at which he drew and sold soda waters and sold ice cream, to be, and which was largely, consumed at said counter in said store, and which were sold by the defendant as fit and proper for human consumption; that on the 22d day of June, 1911, the plaintiff went to said store and, at said counter therein, ordered from an employee of the defendant in charge of said counter, ice cream which the defendant and said defendant’s employee well knew was to be eaten by the plaintiff at once and upon said premises; that said ice cream was taken from a receptacle within, or near, said counter, and by said employee of the defendant, and was handed to and served to the plaintiff, who thereupon at once, at said counter, in said store, in the presence of the employee of the defendant serving the same, ate said cream; that said ice cream thus served and delivered to the plaintiff by said employee of the defendant was not wholesome or fit for human consumption, but on the contrary was poisonous, filled with poisonous ptomaines and was highly injurious and poisonous to any one eating the same, which fact was known to the defendant, or should have been known by him,