Opinion
06-17-1954
Rose Bergenfeld et al., Respondents, v. Alexander's Department Stores, Inc., Appellant and Third-Party Plaintiff-Appellant. C. & I. Umbrella Manufacturing Corp., Third-Party Defendant-Respondent.
Samuel E. Swiggett for appellant and third-party plaintiff-appellant.
Leonard Fastenberg for respondents.
Jacob H. Gilbert, Emanuel Morgenbesser and Daniel G. Levin for third-party respondent.
EDER and SCHREIBER, JJ., concur; HOFSTADTER, J., dissents and votes to affirm judgment in favor of plaintiffs against defendant, to reverse judgment in favor of third-party defendant against third-party plaintiff, to reinstate verdict and to direct judgment thereon in favor of third-party plaintiff.
Per Curiam.
No negligence of the appellant department store was shown here. A vendor of a chattel manufactured by a third person, who, as in this case, neither knows nor has reason to know that it is, or is likely to be, dangerous, is not subject to liability for harm caused by the dangerous character or condition of the chattel even though he could have discovered it by an inspection or test of the chattel before selling it (Restatement, Torts, § 402).
The judgment for plaintiffs should be reversed, with costs, and complaint dismissed, with costs; and judgment in favor of third-party defendant affirmed, with costs.
Judgment reversed, etc.