Opinion
July, 1935.
These two actions were brought by plaintiff-wife to recover from the retailer, the wholesaler and the packer for injuries sustained as a result of eating pork chops infected with trichinae, and by the husband for the expenses incurred and loss of his wife's services. The complaints alleged negligence on the part of the packer and breach of warranty on the part of the dealer and wholesaler. The dealer served a cross-bill against the wholesaler and the latter served a cross-bill against the packer. Both actions were tried together. After trial, judgment based on breach of warranty was directed in favor of the wife for $600 and in favor of the husband for $100 against the retailer, and for similar amounts in favor of the retailer against the wholesaler and in favor of the wholesaler against the packer. The cause of action based on negligence was dismissed. The packer appeals from six of the eight separate judgments entered. Judgment of the City Court of Yonkers for $698.50 in favor of Rubin Brothers against appellant, Armour Company, unanimously affirmed, without costs. Appeals from judgments in favor of plaintiff against Kunz and in favor of Kunz against Rubin Brothers dismissed. No opinion.
Present — Lazansky, P.J., Young, Carswell, Tompkins and Johnston, JJ. Judgment of the City Court of Yonkers for $148.50 in favor of Rubin Brothers against appellant, Armour Company, reversed on the law, without costs, and the cross-complaint of Rubin Brothers against appellant dismissed, without costs. Appeals from judgments in favor of plaintiff against Kunz and in favor of Kunz against Rubin Brothers dismissed. The husband may not maintain an action for breach of implied warranty to recover for the consequential damage sustained by him for medical expenses and loss of his wife's services. ( Gimenez v. Great Atlantic Pacific Tea Co., 264 N.Y. 390.) Findings of fact and conclusions of law inconsistent with this decision are reversed and new findings and conclusions will be made. Lazansky, P.J., Young, Carswell, Tompkins and Johnston, JJ., concur. Settle order on notice.