
    Rosario Occhipinti, Intervener, Respondent, et al., Plaintiffs, v. Anthony Buscemi, Respondent, Williamsburg Packing Company, Inc., Impleaded Defendant, Respondent-Appellant, and Adolf Gobel, Inc., Impleaded Defendant, Appellant.
   Action to recover damages for injuries caused by the ingestion of pork infested with trichinae. Judgments against impleaded defendants Williamsburg Packing Company, Inc., and Adolf Gobel, Inc., reversed on the facts and a new trial granted, costs to abide the event, upon the ground that the verdict, insofar as it holds that defendant Buscemi purchased the meat in question from defendant Williamsburg Packing Company, Inc., and that the latter, in turn, had purchased it from defendant Adolf Gobel, Inc., is against the weight of the evidence. Close, P. J., Carswell and Aldrich, JJ., concur; Hagarty and Adel, JJ., concur in the reversal of the judgments but dissent as to the granting of a new trial and vote to dismiss the respective cross complaints of defendants Buscemi and Williamsburg Packing Company, Inc., with the following memorandum: It should be held as matter of law (1) that there was no evidence upon which to find that there was privity of contract between the plaintiff and defendant Buscemi, and that no warranty ran in plaintiff’s favor (Gimenez v. Great Atlantia & Pacific Tea Go., 264 N. Y. 390); (2) that there is no evidence upon which to find that an implied warranty ran from defendant Williamsburg to defendant Buscemi, in view of Buseemi’s testimony that the only pork purchased from Williamsburg which could possibly have resulted in the delivery of the infested pork to plaintiff’s wife and caused the injuries suffered, was selected by defendant Buscemi upon his own judgment; and (3) that there is no evidence to support a finding that any pork which Buscemi may have obtained on January 10, 1940, from defendant Williamsburg came from defendant Gobel.  