Maxwell v. Marsh 225 N.Y. 637

William J. Maxwell, Respondent, v. Henry L. Marsh et al., Appellants.

Maxwell v. Marsh, 173 App. Div. 1003, affirmed.

(Argued November 20, 1918;

decided December 13, 1918.)

Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 1, 1916, affirming a judgment in favor of plaintiff entered upon- a verdict. The complaint alleged that prior to and at the time of the commencement of the action, • the defendants were engaged in conducting a retail store for the sale of meats and provisions which were intended to be used as food, located in Rochester. The plaintiff, as a customer, came to this store on December 2, 1913, and purchased a quantity of meat to be used as food, and which was used as food by this plaintiff and his family, and it is contended that- this meat was unwholesome and unfit for human food and that the plaintiff became poisoned from its use and suffered damages. The action was tried on the theory that upon the sale of such meat, under the circumstances of the case, there was an implied warranty that it was at the time of its sale wholesome and fit for human consumption.

P. Chamberlain for appellants.

D. W. Forsyth for respondent.