The plaintiff was employed as a waitress in a lunch room run by one Abraham, for which she was paid thirty dollars a week and furnished board *Page 471 and lodging. On the 4th of May, 1918, she received from her employer, as part of her lunch, a piece of cake which had been made and sold to him by defendant. While she was eating it a nail, baked into the cake in such a way that it could not be discovered by inspection, stuck in her gum, which became so infected as to necessitate the removal of three of her teeth. She brought this action against the maker of the cake to recover the damages alleged to have been sustained, upon the theory it was liable to her, since it had impliedly warranted, when the cake was sold, that it was fit for human consumption and that such implied warranty inured to her benefit. This was the cause of action alleged in the complaint, as amplified by the bill of particulars, and this was the theory upon which the action was tried and submitted to the jury. She had a verdict and the judgment entered thereon was unanimously affirmed by the Appellate Division. Appeal to this court followed.
In Race v. Krum (222 N.Y. 410) we held that accompanying all sales by a retail dealer of articles of food for immediate use there is an implied warranty that the same is fit for human consumption. We did not consider or pass upon, as will appear from the opinion, whether such a warranty existed in the case of hotel proprietors or those engaged in a similar business. The cause of action arose before section 96 of the Personal Property Law took effect. (Cons. Laws, chap. 41.) In the present case the cause of action arose after the section took effect. This section provides that "there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows: 1. Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), *Page 472 there is an implied warranty that the goods shall be reasonably fit for such purpose."
If there be any liability, therefore, it must be under this section and the jury was so instructed.
In Rinaldi v. Mohican (225 N.Y. 70), where the cause of action arose after the section of the Personal Property Law quoted took effect, we held "that the mere purchase by a customer from a retail dealer in foods of an article ordinarily used for human consumption does by implication make known to the vendor the purpose for which the article is required. Such a transaction standing by itself permits no contrary inferences."
Under the section of the Personal Property Law referred to and the Rinaldi case, an action may be maintained to recover damages caused by the breach of an implied warranty in the sale of food to a consumer for immediate consumption. Whether this warranty extends to a wholesaler was expressly reserved in theRinaldi case, but is now squarely presented.
The plaintiff received the cake from her employer. By reason of its condition it was not fit for human consumption. Her employer bought the cake from the defendant. Is it liable to the plaintiff for the injury sustained? We do not think so. If there were an implied warranty which inured to the benefit of the plaintiff it must be because there was some contractual relation between her and the defendant and there was no such contract. She never saw the defendant, and so far as appears, did not know from whom her employer purchased the cake. The general rule is that a manufacturer or seller of food, or other articles of personal property, is not liable to third persons, under an implied warranty, who have no contractual relations with him. The reason for this rule is that privity of contract does not exist between the seller and such third persons, and unless there be privity of contract, there can be no implied warranty. The benefit of a warranty, either *Page 473 express or implied, does not run with a chattel on its resale, and in this respect is unlike a covenant running with the land so as to give a subsequent purchaser a right of action against the original seller on a warranty.
It may be assumed that under certain facts and conditions the manufacturer of an article would be liable to a third person, even though no contractual relation existed between them, if the article sold were negligently prepared or manufactured. (MacPherson v. Buick Motor Co., 217 N.Y. 382, and authorities there cited; Williston on Sales, sec. 244; Thompson v. QuakerOats Co., 239 Mass. 147; Gearing v. Berkson, 223 id. 257;Tomlinson v. Armour Co., 75 N.J.L. 748; Johnson v.Cadillac Motor Car Co., 261 Fed. Rep. 878; Haley v. Swift Co., 152 Wis. 570.) But the recovery in the present case was not based upon the negligence of the defendant. Plaintiff limited her right to recover to a breach of warranty. She specifically stated in her bill of particulars "such breach of warranty by defendant she makes the issue in this action." I have not been able to find any authority, in this state at least, which would permit a recovery upon that ground and the great weight of authority in this country and England is directly to the contrary. (SeeKetterer v. Armour Co., 247 Fed. Rep. 921, and authorities there cited.)
The judgments appealed from, therefore, should be reversed and the complaint dismissed, with costs in all courts.
HISCOCK, Ch. J., CARDOZO, POUND, CRANE and ANDREWS, JJ., concur; HOGAN, J., dissents.
Judgments accordingly. *Page 474