Greco v. S. S. Kresge Co.

Motion granted. Plaintiff as an administrator sues for himself and the next of kin of his deceased wife who, it is claimed, purchased food and died as the result of eating the same. The defendant obtained at Trial Term a dismissal of the complaint on the opening of plaintiff’s counsel which disclaimed the right to recover for negligence and asserted that plaintiff relied upon a breach of warranty. Plaintiff asks that the dismissal be vacated.

While the plaintiff here calls his action one for breach of warranty, it in fact is not an action for breach of warranty. If there be any right of action…