Summary
In Simpson v. Eichenbrunner, 31 Misc.2d 958, 217 N.Y.S.2d 678 (App.Term 1st Dept.1961), the Appellate Term of the First Department made a similar extension of Greenberg.
Summary of this case from Mull v. Colt Co., Inc.Opinion
July 13, 1961
Appeal from the Municipal Court of the City of New York, Borough of Manhattan, MAX M. MELTZER, J.
Branda Fryer Lysaght Peterson ( John C. Corbett of counsel), for H.D. Hudson Mfg. Co., Inc., appellant.
Leinwand, Grossman Maron ( Milford D. Gerton of counsel), for A. Flohr Co., Inc., appellant.
Calvin Polivy for Leo Eichenbrunner, appellant.
Finn, Rebecchi, Winnie Matis ( Raymond Rebecchi of counsel), for Leroy Simpson, respondent.
Plaintiff has established a prima facie case of breach of warranty. Although the plaintiff's employer rather than the plaintiff was the legal purchaser of the machine, the plaintiff comes within the extension of the rule of privity as laid down in Greenberg v. Lorenz ( 9 N.Y.2d 195) as between plaintiff and the defendant Leo Eichenbrunner, doing business as Leo's Hardware Supply Co. However, there was no privity of contract between plaintiff and the H.D. Hudson Mfg. Co., Inc., manufacturer of the machine, or between the defendant third-party plaintiff Leo Eichenbrunner, doing business as Leo's Hardware Supply Co., and the manufacturer H.D. Hudson Mfg. Co., Inc.; nor was there any proof of negligence on the part of the manufacturer, H.D. Hudson Mfg. Co., Inc. There was, therefore, no basis for a judgment against the manufacturer in favor of either the plaintiff or the defendant Leo Eichenbrunner, doing business as Leo's Hardware Supply Co.
The judgment should be modified so as to delete therefrom so much thereof as awards recovery in favor of the plaintiff against H.D. Hudson Mfg. Co., Inc., and in favor of the defendant Leo Eichenbrunner, doing business as Leo's Hardware Supply Co. against the defendant H.D. Hudson Mfg. Co., Inc., and as modified should be affirmed, without costs.
Concur — HOFSTADTER, HECHT and AURELIO, JJ.
Judgment modified, etc.