(dissenting). The cause of action in the amended complaint is predicated upon a breach of implied warranty of fitness for human consumption of certain “ Wesson ” oil purchased from the defendant by plaintiff’s sister. To recover under such a cause of action there must be alleged and proved, privity of contract between the plaintiff and the defendant. (Chyshy v. Drake Bros. Co., 235 N. Y. 468; Bourcheix v. Willow Brook Dairy, 268 N. Y. 1, 5.)
By the fourth and fifth paragraphs of the amended complaint plaintiff alleges that she and her sister, Gladys Durling, “ jointly kept house ” and “ the expense thereof was jointly borne.” Also that on August 22,1953, Gladys Durling, acting for herself and also as agent for the plaintiff, purchased the “ Wesson ” oil “ for immediate human consumption ” in her household. The Special Term has found and the majority of this court agree that this language in the complaint is sufficient to allege privity of contract between this plaintiff and the defendant in the purchase of ‘ ‘ Wesson ” oil. They rely on Ryan v. Progressive Grocery Stores (255 N. Y. 388). In that case Judge Cardozo wrote: “ The action is for breach of warranty. Plaintiff through his housewife, who acted as his agent, bought a loaf of bread at the defendant’s grocery.” (P. 390.) Nowhere else in the opinion is the question of agency or privity of contract mentioned. The question decided was that under the Personal Property Law (§ 96, subd. 2) there is an implied warranty by the seller of food that it is fit for human consumption. I assume that the court presumed from the relationship of husband and wife that the husband furnished the money for the purchase.
*667In Gimenez v. Great Atlantic & Pacific Tea Co. (264 N. Y. 390, 393) Judge Pound wrote: “ The question reserved in the Rinaldi ease [Rinaldi v. Mohican Co., 225 N. Y. 70], whether an action would lie in favor of others, was settled in the Ryan case by holding that the husband might sue when the wife acted simply as his agent in making the purchases; when the only contract in such case existed between the husband and the seller and when the cause of action in contract accrued to him.” Here the complaint alleges that the sister acted both as principal for herself and as agent for the plaintiff.
I think the Ryan case did not extend the agency rule beyond the case of a wife purchasing for her husband. In the Gimenez case (p. 395) the purchase was by the wife and she was permitted to recover for her personal injuries but the husband’s judgment for loss of services and expenses incurred for his wife’s medical treatment was reversed, the court commenting:
■“ We do not overlook the fact that a sort of third party beneficiary rule might be invoked to give the husband a cause of action in contract. The answer to that contention is that the courts have never gone so far as to recognize warranties for the benefit of third persons.”
In 1943, long after the decision in the Ryan case, the Law Revision Commission after an exhaustive study, recognized the extreme limitations of the privity rule, and recommended to the Legislature an amendment to section 96 of the Personal Property Law which would have given a right of action “ to the buyer’s employees and to the members of his household ”. (1943 Report of N. Y. Law Revision Commission, p. 413.) This the Legislature refused to do. As the Legislature presumably shapes the public policy of the State, I think this court should not, through a theory of agency, go beyond that which was permitted in the Ryan case, namely, the wife acting as agent for the husband. Such is the rule usually followed by appellate courts. (Massey v. Borden Co., 265 App. Div. 839; Salzano v. First Nat. Stores, 268 App. Div. 993.)
All concur, except Pipes, J., who dissents and votes for reversal and for granting the motion, in a separate opinion. Present — Vaughan, J. P., Kimball, Pipes and Wheeleb, JJ.
Order affirmed, with $10 costs and disbursements. [See post, p. 1026.]