(dissenting). The action is for breach of warranty under section 96 (subds. 1, 2) of the Personal Property Law. In her complaint, plaintiff asserts, among other things, that she was a patient in defendant’s hospital; that she agreed to pay, and did pay, for room and board and the usual hospital facilities maintained and services supplied by defendant She also separately alleges that she “ purchased ” from defendant, and “ defendant sold ” to her, blood for the purpose of transfusion into her blood stream — to defendant’s knowledge — and that she “ paid to defendant therefor the sum of $60.00 ” — an ordinary transaction of “ goods supplied under a * * * sale ” (Personal Property Law, § 96).
Although these and related allegations clearly set forth a simple action for breach of warranty (see Civ. Prae. Act, § 241; 1 Abbott’s Forms of Pleading [3d ed.], forms 732-734), the majority now hold that the complaint must be dismissed before any evidence is taken, because what it “ alleges and truly describes is not a purchase and sale of a given quantity of blood, but a furnishing of blood to plaintiff for transfusion at a stated sum, as part of, and incidental to, her medical treatment ”. Aside from the fact that this is not really what the complaint alleges, it should be noted that plaintiff is not suing defendant for the service of injecting the blood into her blood*109stream, but simply for the sale of “ bad ” blood for a separate valuable consideration, over and above the consideration she was paying for “ room and board and the usual hospital facilities * * * and services ”.
Section 82 (subd. 2) of the Personal Property Law defines a sale as “ an agreement whereby the seller transfers the property in goods to the buyer for a consideration called the price ”. In Rinaldi v. Mohican Co. (225 N. Y. 70, 73), we stated that “ we have no doubt that section 96, expressed as it is in general terms, applies to all sales, including sales of food, and that any rules hitherto applied inconsistent with this section are abolished.” Section 156 (subd. 1) of the Personal Property Law provides: ‘ Buyer ’ means a person who buys * * * goods “ ‘ Seller ’ means a person who sells * * * goods”; “ ‘ G-oods ’ include all chattels personal other than things in action and money.”
Section 275 of the Civil Practice Act requires that we construe pleadings “ liberally ” and “ with a view to substantial justice between the parties ”. And we have held accordingly (Condon v. Associated Hosp. Service, 287 N. Y. 411; Wainwright & Page v. Burr & McAuley, 272 N. Y. 130). It is also settled beyond dispute that on a challenge to the legal sufficiency of a complaint, we accept as true its allegations, and any reasonable inference that may be drawn therefrom (Condon v. Associated Hosp. Service, supra; Garvin v. Garvin, 306 N. Y. 118, 120; Schwartz v. Heffernan, 304 N. Y. 474, 478; Green v. Doniger, 300 N. Y. 238; Latham v. Father Divine, 299 N. Y. 22, 26; Nevins, Inc., v. Kasmach, 279 N. Y. 323, 325); and if “in any aspect upon the facts stated ’ ’ plaintiff may recover, the challenge may not be sustained, notwithstanding that the proofs may fall short of establishing the allegations as facts (Dyer v. Broadway Central Bank, 252 N. Y. 430, 432-433; Denihan Enterprises, Inc., v. O’Dwyer, 302 N. Y. 451, 458). The prevailing opinion exempts this case from the operation of these well-established rules.
By decisions of this court, rather than by virtue of any statute, we have held hospitals immune from liability for the negligence of their properly selected physicians and nurses. Formerly, we invoked the theory of implied waiver to exempt charitable hospitals (see Schloendorff v. Society of N. Y. Hosp., 211 N. Y. 125, *110128, 129; Hamburger v. Cornell Univ., 240 N. Y. 328). But in Phillips v. Buffalo Gen. Hosp. (239 N. Y. 188, 189), we stated that this doctrine ‘ ‘ is logically weak ’ ’, and in Sheehan v. North Country Community Hosp. (273 N. Y. 163) we repudiated the doctrine altogether. Thus now, if a hospital is to be held immune from liability for the medical acts of its physicians and nurses, that immunity must rest on their status as independent contractors as opposed to servants (Mrachek v. Sunshine Biscuit, 308 N. Y. 116, decided herewith), for a hospital undertakes, not to heal, but merely to supply others who will heal on their own responsibility (Matter of Bernstein v. Beth Israel Hosp., 236 N. Y. 268). This rule has sometimes worked great hardship on persons injured, as, for example, Bryant v. Presbyterian Hosp. in City of N. Y. (304 N. Y. 538), and it should not he extended so as to encompass a sale as here alleged in the face of a positive statute such as section 96 of the Personal Property Law.
Plaintiff is not suing the hospital for any act by a physician, nurse or orderly, but rather for the act of the hospital itself in selling to her for a specific consideration blood containing “ injurious substances, agents and impurities ”. The doctors and nurses, who constitute the human skill, and for whose negligent medical acts it is immune from liability, had nothing whatever to do with this sale, and therefore the reason underlying the rule granting immunity does not exist here. Indeed, this is recognized by the majority when they concede that plaintiff may have a cause of action for negligence. That being so, by what authority may we withhold from plaintiff the alternative remedy (Greco v. Kresge Co., 277 N. Y. 26) provided by section 96 of the Personal Property Law, and particularly where the hospital has a remedy over against the third-party defendant?
We have held that where a person orders food in a restaurant or ice cream in a drugstore, it constitutes a sale to which the Personal Property Law annexes an implied warranty that the food is reasonably fit for consumption (Temple v. Keeler, 238 N. Y. 344). So it has been held with regard to drugs (Hopkins & Co. v. Silverman, 234 App. Div. 224). We cannot logically differentiate those situations from the one involved here, at least as a matter of pleading.
*111In the prevailing opinion it is said that the contract alleged in the complaint is “ clearly one for services ” and “ is not divisible ”, for “ the patient bargains for, and the hospital agrees to make available, the human skill and physical materiel of medical science to the end that the patient’s health be restored ’ ’; and that “ it is immaterial that it is the doctor who may diagnose and treat and the hospital which may supply facilities and material ”. We have had no difficulty whatever in the past in frequently distinguishing between medical and administrative acts, even when performed by the same person, recognizing that the contract is divisible, and, while we have held hospitals immune when they have carefully selected persons supplying the human skill, we have never extended that doctrine to physical material which was bad, as the impure morphine solution “ unfit for use ” in Volk v. City of New York (284 N. Y. 279); the defective hot water bag in Iacono v. New York Polyclinic Med. School & Hosp. (269 App. Div. 955, affd. 296 N. Y. 502); and the defective chair in Holtfoth v. Rochester Gen. Hosp. (304 N. Y. 27).
The majority also rest their decision in part on the ground that “ informed opinion is at hand that there is today neither a means of detecting the presence of the jaundice-producing agent in the donor’s blood nor a practical method of treating the blood * * * so that the danger may be eliminated ’ Thus they rely upon so-called medical reports which are neither in the record nor even mentioned in the briefs — matter which plaintiff has had no opportunity to rebut either by evidence or by argument — indeed, plaintiff is now prevented from furnishing any evidence whatever.
We think the courts below were clearly correct in stating that we “ may not hold as a matter of law that there was no sale without knowing any of the facts relating to the acquisition of the blood by the plaintiff ”, and plaintiff, under the allegations of her complaint, should be permitted to present her proofs. We should not, on the very first occasion this question is presented to us, dismiss her complaint without giving her an opportunity to establish its allegations, and thereby further extend, on a mere challenge to a pleadng which must be liberally construed, the rule of immunity applicable to human skill to a duly alleged sale transaction by the hospital itself, in the face *112of the provisions of section 96 of the Personal Property Law.
The order of the Appellate Division should be affirmed, with costs, and the question certified answered in the affirmative.
Lewis, Ch. J., Desmond and Van Voobhis, JJ., concur with Fuld, J.; Froessel, J., dissents in an opinion in which Conway and Dye, JJ., concur.
Orders reversed, etc.