The sun. [volume] (New York [N.Y.]) 1833-1916, 1916-03-19
NOVEL POINTS OF THE LAW.

~ $780, "
An opinion handed down by the APP
pellate Division of the Supreme Court.
Third Department. registers a protest
against the decision the court was con-
strained to make. The case was an ac-
ton for damages by Anna MARY Einaldi
against the Mohican cotnpanA because
she was made i'll by pork bought from
the defendant which contained triclina.
The meat bore the United States Gov
ernment stamp certifying that 1t was
Sound and 1T for consumption and free
from defect 4 jury In Schenectady
county returned n verdict for the plain
tin for $1,000 and the Appellate Division
affirmed II. Justice Howard, writing the
opinion. said.
at Is quite apparent from the record
that the defendants store was clean and
sanitary and that the defendant was abb
~solutely free from negligence. There
was no lack of care whatever in the
handling or sale Of the meat. So that We
nre confronted squarely with the question
as to whether the sale of this meat under
these circumstances did carry with 4, an
implied warranty OF fitness. Were this
question being presented to this court
for the first time l should rebel yigor-
ously against following, In this instance.
the common law rule of implied war
ranty proclaimed as far bac as the days
OF Blackstone and adhered TO in this
State and quite generally in all tho
States of the Union. Many common law
doctrines established centuries ago are
rejected by the courts as inapplicablc to
present day conditions. The rule h II
there is an implied warranty ON the part
Of the vendor OF foodstuhs. that goods
sold Tor immediate consumption are fit
aud Wholesome. Is u doctrine no longer
suitable. | believe. i'll modern conditions.
This court has, however, twice very re-
ccutlt committed itself TO the old rule.
Frequently where courts follow slaNishly
~ the footsteps of precedent they fail
to do Justice and are conscious That they
are falling to do justice. Eut. although
going contrary 10 their judgment. they
feel bound 10y the established Law. In
the Race cas- decided iu March, l"ll, !
diSscutcd from the application ot iho
doctriu. Of implied warranty. IS did also
Justice Woodward However. e ma
iority Of the our adopted IN" old iulr.
IL July. 1914. we decided the lrdhy
case. again adopting Tia" common ioN
doctrine. Sow ~ are asked 10 dis
tluguisii this case from the Race '.t-c.
Gnl,~S We ar" 10 make this court rIdi'-
ulouS. I do u' ec" how "" can do sn'
Justice Howard pointed uut ;In; ire
Eac. case differed from TN" present 1'-
ton because the comWpuitt there solid
Wa> i.- cream ~,ourouu:'t los I"' doe
PENDANT. ~" lays thar th" implied war
rauty rulc it set forth a. follow iu
~ coleman ". Keller 10y ia" Suprou'
Court of Illinois 1t may be said tina,
the rule is 4 harsh one, bu; a. Il gem
otdl .ule. in tu" sale ~ provisions tie
vendor has 80 many more facilities for
asccrtaining the souuducss or ui -ouud-
ness Of the article offered for S-ll' which
are not possessed by the purchase tlat
IL Is much safer 20 hold the vendor La
BILE than II would be 10 compel the pur-
chaser to assume the risk.
Justice Howard writes TIA II the prir-
ciple il as stated in the Illinois case
, mo amount 4 care can relieve the ven-
dor He approves of the decision of
the Supreme judicial Court or Maine
in refusing to extend the rule To- canned
asparagus. and concludes
This court. however. having 50 re-
Gently twice takcY a contrary pos ton
on TN" subirot. u would be better. |
4 'h'uk. 20 alloN ;le court of Appeal, "a
dispose Of 'Nr question ~ tlis state
'han for ~ goo 90 ioH.r' 80 .hc % dn--
,u,.t.nu here ,r. ,H..~ ..i,.' ,un.i>ip.
and perhaps r|i.'uI" Nin 80" .aN