
    Mary De Luccio, Respondent, v. Wagner Baking Corporation, Appellant.
    Supreme Court, Appellate Term, Second Department,
    June 12, 1952.
    
      A. Paul Goldblum and Thomas F. Keane for appellant.
    
      James Flynn for respondent.
   Per Curiam.

The plaintiff failed to establish that the defendant was negligent, that the nail was imbedded in the pie at the time that it left the defendant’s place or that the pie was in the same condition at the time of its consumption as it was when it left the defendant’s place. The wrapper on the pie was unsealed; the position of the nail indicated that it might have been introduced any time after the pie was baked. The pie had passed through the hands of two distributors besides the defendant before it reached plaintiff’s employer who served the pie. It was sheer speculation on the part of the jury to find negligence on the part of the defendant, it being clear that the injury could have been caused by the negligence of some other parties.

The judgment should be unanimously reversed upon the law and the facts, with $30 costs to defendant, and complaint dismissed, with appropriate costs in the court below.

Fenneuly, Hooley and Beldock, JJ., concur.

Judgment reversed, etc.  