
    Sheila Greenberg, an Infant, by Louis Greenberg, Her Guardian ad Litem, et al., Appellants, v. Louis Lorenz et al., Doing Business as Pelham Dairies, Defendants-Respondents and Third-Party Plaintiffs. Bernice Foods, Inc., Third-Party Defendant.
    Argued January 3, 1961;
    decided March 2, 1961.
    
      
      Alfred S. Julien and Theodore Kamens for appellants.
    I. A warranty of merchantability accompanied this sale. (Ryan v. Progressive Grocery Stores, 255 N. Y. 388; Aron & Co. v. Sills, 240 N. Y. 588; Colella v. Smith-Fredenburg Corp., 239 App. Div. 274; Foley v. Liggett & Myers Tobacco Co., 136 Misc. 468, 232 App. Div. 822; Kelvinator Sales Corp. v. Quabbin Improvement Co., 234 App. Div. 96; Bencoe Exporting & Importing Co. v. McGraw Tire & Rubber Co., 212 App. Div. 136; Henningsen v. Bloomfield Motors, 32 N. J. 358.) II. The rule of Chysky v. Drake Bros. Co. (235 N. Y. 468) was conceived in error. (Greco v. Kresge Co., 277 N. Y. 26; Fredendall v. Abraham & Straus, 279 N. Y. 146.) III. The protection of the consumer public requires that the antiquated rule of Chysky be forever laid to rest. (Woods v. Lancet, 303 N. Y. 349; Swift & Co. v. Wells, 201 Va. 213.) IV. The courts of New York State have indicated their discomfort with the privity requirement by whittling out tortured exceptions to the rule. (Conklin v. Hotel Waldorf Astoria Corp., 5 Misc 2d 496; Ryan v. Progressive Grocery Stores, 255 N. Y. 388; Visusil v. Grant, 253 App. Div. 736; Hopkins v. Amtorg Trading Corp., 265 App. Div. 278; Bowman v. Great Atlantic & Pacific Tea Co., 284 App. Div. 663; Ultramares Corp. v. Touche, 255 N. Y. 170; Blessington v. McCrory Stores Corp., 305 N. Y. 140; Blackstone v. Miller, 188 U. S. 189; Parish v. Great Atlantic & Pacific Tea Co., 13 Misc 2d 33.) V. The need to do away with privity is not a legislative problem. (Arfons v. Du Pont de Nemours & Co., 261 F. 2d 434; B. F. Goodrich Co. v. Hammond, 269 F. 2d 501; Woods v. Lancet, 303 N. Y. 349.)
    
      William F. McNulty for respondents.
    I. Far from being ‘ ‘ conceived in error ’ ’, as claimed by plaintiffs, the privity rule as applied by this court to actions for the breach of the implied warranties of fitness and merchantable quality is fundamentally sound in principle and should not be abandoned. (Chysky v. Drake Bros. Co., 235 N. Y. 468; Schmidt v. Merchants Desp. Transp. Co., 270 N. Y. 287; Blessington v. McCrory Stores Corp., 305 N. Y. 140; Rinaldi v. Mohican Co., 225 N. Y. 70; Ryan v. Progressive Grocery Stores, 255 N. Y. 388; Race v. Krum, 222 N. Y. 410.) II. Despite the repeated attempts which have been made to destroy the privity rule in the field of implied warranty and thus extend the heavy burden which section 96 of the Personal Property Law places on the seller to third persons, the decision of this court in Chysky v. Drake Bros. Co. (235 N. Y. 468) still remains the settled law of New York. (Redmond v. Borden’s Farm Prods. Co., 245 N. Y. 512; Turner v. Edison Stor. Battery Co., 248 N. Y. 73; Ryan v. Progressive Grocery Stores, 255 N. Y. 388; Gimenez v. Great Atlantic & Pacific Tea Co., 264 N. Y. 390; Bourcheix v. Willow Brook Dairy, 268 N. Y. 1; Campo v. Scofield, 301 N. Y. 468; Salzano v. First Nat. Stores, 268 App. Div. 993; Massey v. Borden Co., 265 App. Div. 839; Hopkins v. Amtorg Trading Corp., 265 App. Div. 278; Bowman v. Great Atlantic & Pacific Tea Co., 284 App. Div. 663, 308 N. Y. 780; Block v. Empire State Doughnut Corp., 233 App. Div. 774.) III. If, as argued by plaintiffs, “ the protection of the consumer public ’ ’ requires that third persons be allowed to sue for the breach of the implied warranties created by section 96 of the Personal Property Law, either in the case of articles of food intended for human consumption or any other articles of personal property, the statute itself should be amended so as not only to specify the classes of cases in which third persons may sue but also to limit the class of third persons who may bring suit. (Lawrence v. Fox, 20 N. Y. 268; Ultramares Corp. v. Touche, 255 N. Y. 170.)
   Chief Judge Desmond.

The infant plaintiff and her father sue a retail food dealer for damages for breach of alleged warranties of fitness and wholesomeness (Personal Property Law, § 96, subds. 1, 2). Defendant, they say, sold the father a can of salmon for consumption in the family home. The tinned fish, so it is alleged, was unfit for use as food because it contained some pieces of sharp metal which injured the child’s teeth and mouth. The trial at City Court produced a judgment for both plaintiffs on the warranty theory. The Trial Justice commented on the trend away from such decisions as Chysky v. Drake Bros. Co. (235 N. Y. 468) and Redmond v. Borden’s Farm Prods. Co. (245 N. Y. 512) and held that although the father had bought the can of salmon the implied warranty extended to his 15-year-old daughter as a member of his household. The Appellate Term affirmed by a vote of 2 to 1. The majority in that court held that the old cases were no longer controlling. The Appellate Division, however, decided (nonunanimously) that the Chysky case is still law and that it forbids a recovery on warranty breach to anyone except the purchaser. As the case comes to us, the father has a judgment for his expenses but the child’s own suit has been dismissed for lack of privity.

Our difficulty is not in finding the applicable rule but in deciding whether or not to change it. The decisions are clear enough. There can be no warranty, express or implied, without privity of contract (Turner v. Edison Stor. Battery Co., 248 N. Y. 73, 74; Pearlman v. Garrod Shoe Co., 276 N. Y. 172) since a warranty is an incident of a contract of sale (Fairbank Canning Co. v. Metzger, 118 N. Y. 260, 265). The warranty does not run with the chattel (Nichols v. Clark, MacMullen & Riley, 261 N. Y. 118). Therefore, as to food or other merchandise, there are no implied warranties of merchantability or fitness except as to the buyer (Chysky v. Drake Bros. Co., 235 N. Y. 468, supra; Ryan v. Progressive Grocery Stores, 255 N. Y. 388). A wife buying food for her husband may be considered his agent so as to allow a recovery by him (Ryan v. Progressive Grocery Stores, supra) and she can bring an action of her own if she makes the purchase and suffers from the breach of warranty (Gimenez v. Great A. & P. Tea Co., 264 N. Y. 390). When two sisters lived in a common household, the one who bought the food was deemed an agent of the other (Bowman v. Great A. & P. Tea Co., 308 N. Y. 780). The same (Bowman) theory was expanded to let both husband and wife recover (Mouren v. Great A. & P. Tea Co., 1 N Y 2d 884). But a dependent child is not a contracting party and cannot be a warrantee so no damages are due him (Redmond v. Borden’s Farm Prods. Co., 245 N. Y. 512, supra).

The unfairness of the restriction has been argued in writings so numerous as to make a lengthy bibliography (see, as examples: Starke, Implied Warranties of Quality and Wholesomeness in the Sale of Food, N. Y. L. J., April 8, 9, 10, 1957, p. 4, col. 1 [Vol. 137, Nos. 67-69]; 1943 Report of N. Y. Law Rev. Comm., p. 413; 1945 Report of N. Y. Law Rev. Comm., p. 23; 1959 Report of N. Y. Law Rev. Comm., p. 57; Miller, N. Y. State Bar Bulletin, Oct., 1952, p. 313; Melick, Sale of Food and Drink, p. 94; Prosser, Torts [2d ed.], p. 493; 29 Fordham L. Rev. 183 [Oct, 1960]; 44 Cornell L. Q. 608; 34 N. Y. U. L. Rev. 1442 ; 35 St. John’s L. Rev. 178 [Dec., I960]). About 20 States have abolished such requirements of privity, the latest being Virginia and New Jersey (Swift & Co. v. Wells, 201 Va. 213 [1959]; Henningsen v. Bloomfield Motors, 32 N. J. 358 [1960]). The Uniform Commercial Code (§ 2-318) provides that: A seller’s warranty whether express or implied extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty.” In 1943, 1945 and 1959 the New York State Law Revision Commission, each time after careful study, recommended that the implied warranty of fitness for use should extend to the buyer’s household, members, employees and guests. The Legislature did not act on any of the commission’s proposals.

The injustice of denying damages to a child because of nonprivity seems too plain for argument. The only real doubt is as to the propriety of changing the rule. Of course, objection will be made (as it has been made before in other such situations, see Woods v. Lancet, 303 N. Y. 349; Bing v. Thunig, 2 N Y 2d 656). But the present rule which we are being asked to modify is itself of judicial making since our statutes say nothing at all about privity and in early times such liabilities were thought to be in tort (Prosser, Torts [2d ed.], p. 507; 1 Williston on Sales [Rev. ed.], p. 502). Alteration of the law in such matters has been the business of the New York courts for many years (MacPherson v. Buick Motor Co., 217 N. Y. 382; Ultramares Corp. v. Touche, 255 N. Y. 170).

The Ryan, Gimenez and Bowman cases (supra) in our court show an increasing tendency to lessen the rigors of the rule. In Blessington v. McCrory Stores Corp. (305 N. Y. 140) we passed on a Statute of Limitations point only but we did not (as we could have under the old cases) dismiss for insufficiency a complaint which demanded damages for an infant’s death when the dangerous article had been purchased by the infant’s mother. There are a great many well-considered lower court decisions in this State which attest to the prevalent feeling that at least as to injured members of a buyer’s family the strict privity rule is unfair and should be revised.

So convincing a showing of injustice and impraeticality calls upon us to move but we should be cautious and take one step at a time. To decide the case before us, we should hold that the infant’s cause of action should not have been dismissed solely on the ground that the food was purchased not by the child but by the child’s father. Today when so much of our food is bought in packages it is not just or sensible to confine the warranty’s protection to the individual buyer. At least as to food and household goods, the presumption should be that the purchase was made for all the members of the household.

Sections 199-a and 200 of the Agriculture and Markets Law have no relevance here since those laws refer to food which has become unfit because of adulteration, decomposition, etc.

The judgment should be modified by reinstating the infant’s recovery and, as so modified, affirmed, with costs to the plaintiffs in this court and in the Appellate Division.

Froessel, J. (concurring).

I concur for modification here, but limited to the facts of this case. The infant plaintiff asked for the food purchased, and it was but normal that the father, who was in any event liable for her necessaries, should make the purchase on behalf of both (see Bowman v. Great A. & P. Tea Co., 308 N. Y. 780).

The Chief Judge has clearly and succinctly stated the problem before us, and has reviewed the applicable authorities. This is an action in contract based on a statute (Personal Property Law, § 96), not for negligence, and it is basic law that unless privity exists there can be no warranty, and where there is no warranty there can be no breach. We may not convert "an action in contract into what really amounts to an action in tort.

However much one may think liability should be broadened, that must be left to the Legislature. There are two sides to the problem before us — and one of them is the plight of the seller. It is just as unfair to hold liable a retail groeeryman, as here, who is innocent of any negligence or wrong, on the theory of breach of warranty, for some defect in a canned product which he could not inspect and with the production of which he had nothing to do, as it is to deny relief to one who has no relationship to the contract of purchase and sale, though eating at the purchaser’s table. As Justice Steuer aptly observed at the Appellate Term, “it may be odd that the purchaser can recover while others cannot, but it is odder still that one without fault has to pay at all”. This distinguishes these cases from situations such as presented in Woods v. Lancet (303 N. Y. 349) and Bing v. Thunig (2 N Y 2d 656), where the defendant has clearly committed a wrong.

It is for the Legislature to determine the policy of accommodating those conflicting interests after affording all concerned an opportunity to be heard. Indeed, the Legislature has not been unaware of the problem for, in three separate years —1943, 1945, 1959 — as noted by the Chief Judge, the New York State Law Revision Commission recommended that the benefits of implied warranties be extended to the buyer’s employees and to the members of his household, but the Legislature has declined to act, despite the introduction of legislation. I do not think we should now assume their powers and change the rules, which will undoubtedly affect many cases in which lawyers and litigants understood the law to be otherwise, and governed themselves accordingly.

Judges Dye, Fuld, Van Voorhis, Burke and Foster concur with Chief Judge Desmond; Judge Froessel concurs in result in a separate opinion.

Judgment accordingly.  