Funk v. Kaiser-Frazer Sales Corp.

23 A.D.2d 771, 258 N.Y.S.2d 553, 1965 N.Y. App. Div. LEXIS 4454

Opinion

In an action by a husband and a wife to recover damages by reason of personal injury sustained by the wife when her head struck the windshield of their automobile, the plaintiffs appeal from a judgment of the Supreme Count, Nassau County, entered March 9, 1962 after a jury trial, upon the court’s oral decision at the close of the plaintiffs’ ease, which dismissed their complaint. Judgment reversed on the law, with costs to plaintiffs, and new trial granted. No questions of fact were considered. In their amended complaint the plaintiffs alleged a cause of action based upon defendant’s breach of the warranty claimed to have been made by it to the plaintiffs when the plaintiff husband purchased the automobile, namely: that the automobile was equipped with a “safety windshield” which, upon impact, would push out, thus preventing injury. In our opinion, the plaintiffs presented sufficient evidence to go to the jury on the question of the defendant’s connection with the sale of the automobile and the representations made concerning it. We also note that a plaintiff is no longer limited to express representations made in the contract; he may now reasonably rely upon representations made by a seller through mass media advertisement {Bandy Knitwear v. American Cyanamid Co., 11 N Y 2d 5). (For prior appeal, see 15 A D 2d 548.) Ughetta, Acting P. J., Brennan, Hill, Rabin and Hopkins, JJ., concur.