De France v. Oestrike

Appeal from so much of an order as granted summary judgment striking out the denials contained in the answer with respect to the second cause of action alleged in the complaint. In that cause of action respondent sought to recover damages for personal injuries arising out of a breach of an implied warranty of the fitness of food sold for human consumption. Respondent claimed that he became ill because of the presence of a dead frog in a bottle of soda, purchased at appellant’s store and from which respondent drank. The motion for summary judgment was based upon affidavits by respondent,…