Sager v. Borden's Farm Products Co.

250 A.D. 882, 295 N.Y.S. 101, 1937 N.Y. App. Div. LEXIS 9552

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 30, 1937
• Status: Published

Opinion

Action by the plaintiff, a married woman living with her husband, to recover on the theory of implied warranty, damages claimed to have been received from eating food claimed to be unfit, for human consumption. Judgment in favor of the defendant, dismissing the complaint at the close of the plaintiff’s case on the ground that the plaintiff, in making the purchase, acted as agent of her husband, reversed jn the law and a new trial granted, costs to appellant to abide the event. Although plaintiff received from other members of her family a certain sum of money which she used to pay for the milk in question, the jury might properly infer that, as housewife, she did not act. as a mere agent under instructions to make a specific purchase (Ryan v. Progressive Grocery Stores, Inc., 255 N. Y. 388) but that, despite her acquiescent conclusion in answer to a leading question, she retained the money as her own in consideration of an obligation to provide requisite foodstuffs, and that the purchase as made was by her on her own behalf as consumer. (Gimenez v. Great Atlantic & Pacific T. Co., 264 N. Y. 390; McSpedon v. Kunz, 271 id. 131.) Lazansky, P. J., Hagarty, Johnston, Adel and Taylor, JJ., concur.