Opinion
December 2, 1960
Plaintiff appeals from an order of the Supreme Court which dismissed the first cause of action in an amended complaint on the ground of insufficiency. The defendant manufactures a dust vaccine for the immunization of chickens against two specific diseases. Plaintiff alleges that he purchased some of this dust vaccine from a retailer, who had purchased it from a supplier, who had in turn purchased it from the defendant. It is alleged that plaintiff relied upon national advertising and pamphlets promulgated by the defendant which contained certain warranties about the product which were not true, and that plaintiff sustained damage as a result of his use of the product. The dismissed cause of action is clearly for breach of warranty. It is undisputed that there was no privity of contract between plaintiff and defendant, and the court at Special Term granted the motion to dismiss on that ground. It is clearly established as the law of this State that an action for breach of warranty, express or implied, does not lie in the absence of a contractual relationship. ( Chysky v. Drake Bros. Co., 235 N.Y. 468; Turner v. Edison Stor. Battery Co., 248 N.Y. 73.) Plaintiff does not seem to question that such is the law in the State of New York, but cites a growing number of jurisdictions which have relaxed the requirement of privity of contract and infers that the New York rule should be changed. Even if such a course were desirable it is not within the province of this court to change existing law or to make a determination contrary to binding precedents. Order unanimously affirmed, with $10 costs.
In decisions Nos. 1-50 the court is as follows: Bergan, P.J., Coon, Gibson, Herlihy and Reynolds, JJ.