
    Stephen Christian et al., Respondents, v. Hotel Waldorf Astoria Corporation, Appellant.
    Supreme Court, Appellate Term, Second Department,
    May 9, 1946.
    
      
      Francis J. Caffrey and E. C. Sherwood for appellant.
    
      Bernard I. Kamen for respondents.
   Per Curiam.

Memorandum The plaintiffs not only had to establish that they were made ill by food but also that there was negligence on the part of the defendant in preparing and serving the food. Reports of findings made by the Department of Health of the City of New York were offered in evidence by plaintiffs for that purpose. The evidence presented a question of fact as to whether the food or a nonfilterable virus caused the illness complained of. In view of the reports of the analyses made by the Department of Health, a finding that the food was poisonous is against the weight of evidence. (Callan v. Centaur Co., 270 App. Div. 907.) No proof was offered that any of the conditions or practices in defendant’s place of business found by the Department of Health would ordinarily contaminate or result in the contamination of food, or that in the exercise of reasonable care the defendant should have anticipated that any one or any combination of conditions or practices would cause food to be harmful. Merely because a condition or practice was objectionable to an investigator of the Department of Health would not establish negligence, unless there was a statute or ordinance violated, or customary methods Avere not followed, or the methods adopted would result in food not fit for use.

The judgment should be unanimously reversed on the law and the facts and neiv trial granted, with $30 costs to defendant to abide the event.

MacCbate, McCooey and Steinbeink, JJ., concur.

Judgment reversed, etc.  