I dissent and vote to dismiss the complaint. ■ The defendant, Estwing Manufacturing Co., Inc., hereinafter designated ‘ ‘ Estwing ”, is a foreign corporation engaged in the business of manufacturing hammers, including geologists’ hammers. While the infant plaintiff, Michael Singer, a boy then 10 years of age, was kneeling on the ground watching his father, the plaintiff, Frederick F. Singer, attempted to split open a quartz rock weighing two or three pounds with a geologists’ hammer weighing 14 ounces manufactured by Estwing, which the boy had received as a birthday present from *100his aunt. The hammer was never intended to be used to split open rocks. It is claimed that a chip of metal flew off the edge of theliead of the steel hammer and penetrated the boy’s right eye.
The geologists ’ hammer allegedly was purchased by the infant plaintiff’s aunt from the defendant, Alan Walker, a retail seller of products of this kind engaged in business in the City of New York.
The case was tried to a jury. On the trial, the action was discontinued against defendant Walker. The case was submitted to the jury against Estwing, the manufacturer of the hammer, on three theories of liability: (1) negligence in the design and manufacture of the hammer; (2) breach of express warranty; and (3) breach of implied warranty of fitness for use. The jury returned a general verdict in the sum of $130,000 in favor of the infant plaintiff and the sum of $2,083.23 in favor of the father.
The case was submitted to the jury on three distinct and separate theories of liability, to wit, negligence, breach of express warranty and breach of implied warranty of fitness for use. The jury rendered a general verdict which did not indicate on which of the three theories of liability it was grounded. The judgment appealed from must be reversed unless the general verdict of the jury in favor of the plaintiffs can be sustained on all three theories. (Smulczeski v. City Center of Music & Drama, 3 N Y 2d 498, 501; Fein v. Board of Educ. of City of N. Y., 305 N. Y. 611, 613; Durham v. Metropolitan- Elec. Protective Assn., 27 A D 2d 818; Filanowicz v. Guarino, 27 A D 2d 666.)
In my opinion, the plaintiffs failed to establish either of their causes of action since there is no showing that Mr.' Singer was making a normal use of the hammer or was using the hammer for the purpose for which it was designed and intended. Mr. Singer was attempting to split open a rock two or,three pounds in weight with a 14-ounce hammer which was never - intended to be used to split open rocks but was intended to be used for the purpose of chipping pieces from the rock. There was expert testimony to the fact that a two- or three-pound rock should be split with a chisel and hammer, or with a small sledge hammer.
In Campo v. Scofield (301 N. Y. 468) it was held that a manufacturer is not required to contemplate a misuse of its product by a careless person, but is only required to contemplate injury resulting from the use of the product in the manner for which it was designed or intended to be used.
*101Plaintiffs’ witness, Walker, testified that a chisel and small sledge hammer are best used in breaking or splitting open a quartz rock weighing two or three pounds and that after the rock is split open a 14-ounce geologists’ hammer can then be used to trim the specimen. Plaintiffs’ other expert, Hanson, testified that in most cases the hammer in question is used to remove a portion of the rock, not to split it.
In short, it appears to me that the proof shows that the accident occurred when the hammer was not being used in a normal manner. The warranty and. guarantee that the hammer is unbreakable guarantee that it is unbreakable in normal use, meaning when it is being used for the purpose for which the hammer was designed and manufactured.
Plaintiffs’ expert, Silkiss, who testified the hammer was defectively designed and manufactured, based his testimony on the assumption that when the accident happened, the hammer was being used in a normal manner or in the manner for which it was designed and manufactured. The record does not support this assumption, in my opinion, and hence it lacks probative force and is insufficient to support the finding of liability. (Quinones v. St. Vincent’s Hosp. of City of N. Y., 20 A D 2d 529, affd. 16 N Y 2d 572.)
The express and implied warranties plaintiffs claim were breached by defendant are not applicable to the infant plaintiff who was not a user of the geologists’ hammer involved. It is not the law of New York that an action for breach of warranty, express or implied, is available to a nonuser who is a bystander. (Berzon v. Don Allen Motors, 23 A D 2d 530; Mull v. Ford Motor Co., 368 F. 2d 713, 717 [U.S.C.A., 2d Cir.]; cf. Codling v. Paglia, 38 A D 2d 154.)
Further, it was error for the court to allow the plaintiffs to establish that subsequent to the accident herein Estwing beveled the edges and made other changes in some of the 14-ounce geologists’ hammers it manufactured. (Barone v. 111 East 39th St. Corp., 38 A D 2d 797; Hadges v. New York R. T. Corp., 259 App. Div. 154, 155.)
Nunez, J. P., and Kupferman, J., concur with Tilzer, J.; McNally, J., dissents in an opinion.
Judgment, Supreme Court, New York County entered on June 29,1971, affirmed. Respondents shall recover of appellant $50 costs and disbursements of this appeal.