Bergenfeld v. Alexander's Department Stores, Inc.

207 Misc. 832, 134 N.Y.S.2d 610, 1954 N.Y. Misc. LEXIS 2790

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 17, 1954
• Status: Published

Opinion

Per Curiam.

No negligence of the appellant department store was shown here. A vendor of a chattel manufactured by a third person, who, as in this case, neither knows nor has reason to know that it is, or is likely to be, dangerous, is not subject to liability for harm caused by the dangerous character or condition of the chattel even though he could have discovered it by an inspection or test of the chattel before selling it (Restatement, Torts, § 402).

The judgment for plaintiffs should be reversed, with costs, and complaint dismissed, with costs; and judgment in favor of third-party defendant affirmed, with costs.

Eder and Schreiber, JJ., concur; Hofstadter, J., dissents and votes to affirm judgment in favor of plaintiffs against defendant, to reverse judgment in favor of third-party defendant against third-party plaintiff, to reinstate verdict and to direct judgment thereon in favor of third-party plaintiff.

Judgment reversed, etc.