Moreno v. France Milling Co.

261 A.D. 991, 26 N.Y.S.2d 400, 1941 N.Y. App. Div. LEXIS 8471

Opinion

Plaintiff-wife purchased from defendant, a retailer, a package of pancake flour manufactured and sold by appellant to defendant in sealed packages under a brand name. Upon eating pancakes made from the flour, plaintiff-wife became ill. She sued to recover damages for her pain and suffering, alleging negligence on the part of appellant, and her husband sued to recover for loss of services and medical expenses. Judgment for the plaintiff purchaser and her husband unanimously affirmed, with costs. The appellant’s negligence was established without recourse to the testimony of the witness Gellis. (Cohen v. Dugan Bros., Inc., 132 Misc. 896; Weiner v. Mager & Throne, Inc., 167 id. 338, 340; Chysky v. Drake Brothers Co., 235 N. Y. 468, 473; P. G. Poultry Farm, v. Newton B.-P. Mfg. Co., 248 id. 293, 296, 297; Agriculture and Markets Law, §§ 199-a, 200.) There was no inconsistency in the verdict. The law of the case under the charge of the court was that if the plaintiff-wife asked for this particular brand, the jury might exculpate the retailer. Therefore it must be assumed that since they did so they disbelieved that portion of plaintiff-wife’s testimony in which she indicated that she did not ask for this particular brand. Such a holding in favor of the retailer is wholly consistent with the finding of negligence on the part of the manufacturer. Present — Lazansky, P. J., Carswell, Adel, Taylor and Close, JJ.