" In Cohen v. Brockway Motor Truck Corporation, 240 App. Div. 18, 268 N.Y.S. 545 (1934) the majority of the court was unwilling to extend the MacPherson rule to cover a defective truck door handle which gave way, causing a passenger to fall through the suddenly opened door and under the truck. In my opinion, plaintiff in the matter before us has not stated facts which bring his case within the scope of MacPherson. I would affirm the order of the District Court.

See Wyatt v. Cadillac Motor Car Division, 145 Cal.App.2d 423, 302 P.2d 665. Inevitably, tires wear out, and, if not replaced in time, they become dangerous and will fail. Though a manufacturer may be liable if a defect causes failure of a tire so quickly that the owner's duty of inspection and replacement may not be said reasonably to have arisen, the same result does not necessarily follow if the defect, alone, adversely affects the life of the tire not so immediately or substantially, though, in combination with a condition subsequently arising, it may be said to have contributed to the failure of the tire. See Hentschel v. Baby Bathinette Corp., 2 Cir., 215 F.2d 102; Cohen v. Brockway Motor Truck Corp., 240 App. Div. 18, 268 N.Y.S. 545. Examination of the automobile after the accident disclosed no mechanical defect, nor any error or omission in the assembly or adjustment of the parts, which could have caused the wheels to become misaligned.

In such case it has been often held that the manufacturer owes a duty to the public to see that defects in the machine, or the material carried into its construction, possible for it to determine, shall be entirely eliminated. If the defect could have been discovered by the exercise of the utmost human skill and foresight, it is negligence not to have discovered it. Negligence is imputed when the machine fails for any of said reasons. Berry on Automobiles, Vol. 2, p. 1504 et seq.; Huddy, Cyclopedia of Automobile Law, Vol. 9, 10, p. 315; Cohen v. [Broadway] Motor Truck Corporation, 240 App. Div. 18, 268 N.Y.S. 545; McPherson v. Buick Co., 160 App. Div. 55, 145 N.Y.S. 462; Quackenbush v. Ford Motor Co., 167 App. Div. 433, 153 N.Y.S. 131; Johnson v. Cadillac Co., 2 Cir., 261 F. 878, 8 A.L.R. 1023. * * * The manufacturer is subject to rules much more strict than is the seller." Gordon v. Bates-Crumley Chevrolet Co., La.App., 158 So. 223, 231.

In any event, a question of fact may arise. In Cohen v. Brockway Motor Truck Corporation, 240 App. Div. 18, 268 N.Y.S. 545, 546, suit was brought to recover injuries sustained from breaking of a door handle on an automobile. It was pointed out that breaking of a door handle does not make the automobile either "inherently or imminently dangerous.

A door latch is not a thing imminently dangerous to life or limb. The latch, even if negligently made, does not give rise to a cause of action against the manufacturer where there is no privity of contract; the nature of it is such that it is not reasonably certain to place life and limb in peril, even if negligently made, and no notice is required. MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A. 1916F, 696, Ann.Cas. 1916C, 440; Cohen v. Brockway Motor Truck Corp., 240 App. Div. 18, 268 N.Y.S. 545. THOMAS, Justice.

In such case it has been often held that the manufacturer owes a duty to the public to see that defects in the machine, or the material carried into its construction, possible for it to determine, shall be entirely eliminated. If the defect could have been discovered by the exercise of the utmost human skill and foresight, it is negligence not to have discovered it, negligence is imputed when the machine fails for any of said reasons. Berry on Automobiles, Vol. 2, p. 1504 et seq.; Huddy, Cyclopedia of Automobile Law, Vol. 9, 10, p. 315; Cohen v. Motor Truck Corporation, 240 A.D. 18, 268 N.Y.S. 545; McPherson v. Buick [Motor] Co., 160 A.D. 55, 145 N.Y.S. 462; Quackenbush v. Ford Motor Co., 167 A.D. 433, 153 N.Y.S. 131; Johnson v. Cadillac [Motor Car] Co. (C. C. A.) 261 F. 878, 8 A.L.R. 1023. "In all these cases it was established to the satisfaction of the judge or jury that the injury to the purchaser was due to original defects in construction, material, or workmanship, of the car in question.

440, L.R.A. 1916F, 696], and approved in Kalash v. Los Angeles Ladder Co., 1 Cal. (2d) 229 [ 34 P.2d 481], to the general effect that the manufacturer of an article, knowing that it is to be used by others than the immediate purchaser, is liable to such others for injury which is directly traceable to negligence on the part of the manufacturer, if the nature of the article is such that it is reasonably certain to place life and limb in peril when negligently made and, further, that when a manufacturer or vendor sells an article which because of known structural weaknesses will be inherently dangerous to those using it for the purpose for which it was manufactured or sold, such defects and such purpose being known, the manufacturer or vendor will be held liable to respond in damages to one who is injured while using the article for that purpose, in the absence of contributory negligence or other valid defense. In discussing the MacPherson case, and another similar case, the court in Cohen v. Brockway Motor Truck Corp., 240 App. Div. 18 [268 N.Y. Supp. 545], said: "In each of those cases the defective part in the automobile rendered it, while in motion, a `thing of danger', and an accident, which was almost inevitable, resulted.

Negligence is imputed when the machine fails for any of said reasons. Berry on Automobiles, Vol. 2, p. 1504 et seq.; Huddy, Cyclopedia of Automobile Law, Vol. 9, 10, p. 315; Cohen v. Motor Truck Corporation, 240 App. Div. 18, 268 N. Y. S. 545; McPherson v. Buick Co., 160 App. Div. 55, 145 N. Y. S. 462; Quackenbush v. Ford Motor Co., 167 App. Div. 433, 153 N. Y. S. 131; Johnson v. Cadillac Co. (C.C.A.) 261 F. 878, 8 A. L. R. 1023. In all these cases it was established to the satisfaction of the judge or jury that the injury to the purchaser was due to original defects in construction, material, or workmanship, of the car in question.

The omission of such allegations is fatal to the pleading. ( Amason v. Ford Motor Co., 80 F.2d 265; Inman v. Binghamton Housing Auth., 3 N.Y.2d 137; Campo v. Scofield, 276 App. Div. 413, affd. 301 N.Y. 468; Cohen v. Brockway Motor Truck Corp., 240 App. Div. 18.) The motion is granted, with leave to the plaintiff to replead within 20 days if so advised.