Temple v. . Keeler
New York Court of Appeals
Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered November 17, 1923, unanimously affirming a judgment in favor of plaintiff entered upon a verdict.
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Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered November 17, 1923, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The action was brought to recover for loss and damage alleged to have been caused plaintiff by sickness resulting, as alleged, from her eating fish in defendant’s restaurant, which was unwholesome and unfit for human food, whereby she became ill from ptomaine poisoning.
1Opinion of the CourtAndrews, J.
We hold that where a customer enters a restaurant, receives, eats and pays for food, delivered to him on his order, the transaction is the purchase of goods. We hold also that under such circumstances the buyer does by implication make known to the vendor the particular purpose for which the article is required, and where the buyer may assume that the vendor has had an opportunity to examine the article sold, it appears conclusively that he relies upon the latter’s skill or judgment. (R inaldi v. Mohican Co., 225 N. Y. 70.) Consequently there is an implied warranty that the food is reasonably…
2Cases cited4 opinions
- Friend v. Childs Dining Hall Co.Massachusetts Supreme Judicial Court · 1918
- Rinaldi v. . Mohican Co.New York Court of Appeals · 1918
- Race v. . KrumNew York Court of Appeals · 1918
- People v. . ClairNew York Court of Appeals · 1917
3Cited by38 opinions
- Perlmutter v. Beth David HospitalNew York Court of Appeals · 1954
- Mix v. Ingersoll Candy Co.California Supreme Court · 1936
- F. W. Woolworth Co. v. WilsonCourt of Appeals for the Fifth Circuit · 1934
- Schuler v. Union News Co.Massachusetts Supreme Judicial Court · 1936
- Zabner v. Howard Johnson's, IncorporatedDistrict Court of Appeal of Florida · 1967
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