(dissenting, in part). I agree with the conclusion that the complaint does not state facts sufficient to constitute a cause of action, because it fails to allege that the mattress when purchased was in the same dangerous condition as when it left the factory; and the complaint should have contained the allegation that the injury to plaintiff was caused solely through the negligence of the defendant in manufacturing and selling for general use a product containing potential elements of harm to the user. The statute now imposes upon the manufacturer of mattresses certain duties in their manufacture, and in placing thereon a tag showing the name and address of manufacturer or vendor. (Gen. Business Law, §§ 389-m-389-w, as added and amended.) This mattress *186contained the tag of the defendant. If liability existed at all, the manufacturer might be held by the ultimate purchaser. (Abounader v. Strohmeyer & Arpe Co., 243 N. Y. 458.) The plaintiff should be permitted to amend upon terms. (Civ. Prac. Act, § 283.)
I disagree with the conclusion implied by a dismissal of the complaint, that no cause of action can be stated. There was a duty on the part of the defendant to use care in the manufacture of an article which in its nature might be reasonably certain to put the user in peril of injury when negligently made. (MacPherson v. Buick Motor Co., 217 N. Y. 382, 389. See, also, Torgesen v. Schultz, 192 N. Y. 156; Groves v. Wander & Sons’ Chemical Co., 192 App. Div. 948; affd., 232 N. Y. 579; Crigger v. Coca-Cola Bottling Co., 132 Tenn. 545; 179 S. W. 155.)
I favor reversal, with leave to plaintiff to plead over in twenty days upon payment of costs.
Hill, J., concurs.
Order reversed on the law, with ten dollars costs and disbursements, and complaint dismissed, with ten dollars costs.