Pompilio v. McGeory

283 A.D. 826, 129 N.Y.S.2d 13

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 29, 1954
• Status: Published

Opinion

— In this action against a retailer for breach of warranty and against the manufacturer for damages for personal injuries due to negligence, plaintiff’s proof established that he ordered a bottle of Coca-Cola by its trade name, “ Coke ”, at said retailer’s establishment; that he became ill immediately after drinking out of the bottle, which contained a foreign substance; that he had medical treatment therefor, and that the doctor diagnosed his illness as gastroenteritis. Judgment was entered on the verdict of a jury, awarding $452.10 to plaintiff against the manufacturer and dismissing the complaint as against the retailer. The manufacturer appeals from those parts of said judgment that pertain to it. Judgment of the City Court of Yonkers, insofar as appealed from, reversed on the law and the facts and a new trial ordered, with costs to abide the event. The evidence was insufficient to establish that plaintiff’s illness resulted from his drinking of the Coca-Cola, In addition, under the law of the ease, the verdicts against the manufacture! and in favor of the retailer are inconsistent; for the trial court charged, in substance, that under subdivision 2 of section 96 of the Personal Property Law, there should be a recovery against the retailer if the jury found that there was a foreign substance in the beverage, that it was unfit for human consumption, and that it made plaintiff ill. That charge was proper (Ryan v. Progressive Grocery Stores, 255 N. Y. 388), and no exception was taken thereto. In view of our determination above, we deem it unnecessary to consider appellant’s other claims of error. Nolan, P. J., Adel, Wenzel, Schmidt and Beldoek, JJ., concur.