Opinion
April 14, 1955.
Appeal from the Municipal Court of the City of New York, Borough of The Bronx, WACHTEL, J.
John Nielsen and John P. Smith for appellant.
William C. Sherr for respondent.
There was no causal connection shown between the claimed injuries and the use of defendant's preparation. Plaintiff's testimony alone, unsupported by competent medical evidence, was insufficient to establish that the foundation or "make-up" was the competent producing cause of the injuries and "the sole possible one" ( Cahill v. Inecto, 208 A.D. 191, 194). Breach of the claimed express warranty was not proven or that defendant's formula contained harsh, dangerous or poisonous ingredients likely to cause injury to a normal sensitive skin ( Drake v. Herrman, 261 N.Y. 414, 417).
The trial court erred in charging that some negligence could be found if the jury were satisfied that the defendant had violated the provisions of sections 6810 Educ. and 6813 Educ. of the Education Law. That issue should not have been submitted; there was no basis in the evidence to support a finding of any violation of the statutes.
The judgment should be reversed and new trial ordered, with $30 costs to appellant to abide the event.
HOFSTADTER, SCHREIBER and HECHT, JJ., concur.
Judgment reversed, etc.