Opinion
March 1, 1943.
Plaintiff sues to recover damages for personal injuries sustained when a splinter entered her finger while she was dusting the side rail of a bed which she had purchased, together with other articles of furniture, from the appellant, John Mullins Sons, Inc. The complaint is based upon the theory of breach of an implied warranty of fitness for purpose. The appellant sued plaintiff herein in the Municipal Court of the City of New York to foreclose a lien of $130.20, the balance due on the purchase price. The actions were consolidated. Plaintiff conceded she was in default on the contract of purchase and it was stipulated that if plaintiff secured a verdict in excess of $130.20, that sum would be deducted from the amount of the verdict; and in the event that the verdict was for appellant, that judgment would be rendered against plaintiff in the sum of $130.20, and for the foreclosure of the lien. Plaintiff obtained a verdict for $900 and judgment was entered for that amount, less $130.20. Judgment reversed on the law and the facts, with costs, complaint dismissed on the law, with costs, and judgment directed in favor of defendant in the sum of $130.20, and for the foreclosure of the lien. In our opinion there was no implied warranty that the side rail of the bed was fit for a use which is merely incidental to the particular purpose for which it was required. Moreover, it conclusively appears that plaintiff had full knowledge of the defects of which she complained and, therefore, there was no implied warranty as regards such defects. (Personal Property Law, § 96, subd. 3; Rinaldi v. Mohican Co., 225 N.Y. 70.) In any event, since plaintiff admittedly had knowledge of the defective condition of the side rail which resulted in her injury, she cannot recover consequential damages caused by her use thereof, since such damages, under the circumstances, were not proximately due to the breach of warranty. ( Ellen v. Heacock, 247 App. Div. 476; Isbell-Porter Co. v. Heineman, 113 App. Div. 79; Razey v. Colt Co., 106 App. Div. 103; Bruce v. Fiss, Doerr Carroll Horse Co., 47 App. Div. 273.) Close, P.J., Carswell, Johnston, Taylor and Lewis, JJ., concur.