(dissenting). I dissent and vote for an affirmance of the judgment and order, with costs.
The plaintiff testified that when she received the paper bag containing the tea she put it on a shelf in the cupboard and later transferred the contents to the tea canister and at the time she made the transfer the canister was empty. This fact, if believed by the jury, in connection with her other testimony and that of the defendant’s clerk, was sufficient to support a finding by the jury that the offensive object was in the tea at the time that it was delivered to her by the defendant’s employee.
As to her damage, the plaintiff testified that at the time she pulled her hand out of the canister and found the maggots and the portion of rat she was “ almost paralyzed,” was made “ dreadfully sick to my stomach ” and was “ upset all inside;” subsequent thereto she lost sleep and the desire to drink tea. Bearing in mind that the senses of sight, smell and taste are used in the enjoyment of food and drink, it is fair to conclude that the offensive substance contained in the tea disturbed some or all of such senses to the physical detriment of the plaintiff. The jury could find and apparently did find that such a disturbance was not emotional *691but was a physical distress due to the offense of sight, smell and taste or some of these senses. A cause of action was made out in favor of the plaintiff and the recovery should be sustained. (See Bohan v. Port Jervis Gas Light Co., 122 N. Y. 18, Carroll v. New York Pie Baking Co., 215 App. Div. 240; Foley v. Liggett & Myers Tobacco Co., Inc., 136 Misc. 468, 471; Freedman v. Eastern Massachusetts Street R. Co., 299 Mass. 246.)