Gambino v. John Lucas & Co. , 34 N.Y.S.2d 383 ( 1942 )

Judgments and orders reversed on the law and facts and a new trial granted, with costs to the plaintiff-appellant to abide the event. Memorandum: The verdict of no cause for action was clearly against the weight of the evidence and should have been set aside. The facts, not in dispute, required a holding, as matter of law, that the defendant John Lucas & Co., Inc., although it was not the manufacturer thereof, impliedly warranted that the machine which it leased to the plaintiff was reasonably safe and suitable for the use intended. (Hoisting Engine Sales Co. v. Hart, 237 N. Y. 30; Hansen v. Adams Grease Gun Corp., 254 App. Div. 633; affd., 278 N. Y. 687.) The court, however, submitted that question to the jury as one of fact. This was error which we can review, in the interests of justice, although no exception was taken by the plaintiff to the submission. (Civ. Prae. Act, § 583, subd. 2.) A dealer, as well as a manufacturer, may be held liable for concealed defects. (Ryan v. Progressive Grocery Stores, 255 N. Y. 388, 394.) If the jury found that the tank exploded because gasoline, and not kerosene, was used as fuel, such a holding would have no support in the evidence. The searing of the tank could have been the result of heat generated by kerosene as well as by gasoline. The circular (Exhibit 1) put out by the Hyde Manufacturing Company describing the machine contains the following: “ Kerosene Unit” “ Speed Operates as smoothly as a streamlined flyer. Plenty of gas is developed rapidly, -which means a powerful flame. Applied directly to Boiler, this high heat creates Steam, and how!” All concur. (One judgment is for defendant Lucas & Co. for no cause of action in an action for damages for personal injuries alleged to have been sustained by reason of a breach of warranty of leased machinery. The other judgment dismisses the cross-complaint of defendant Lucas & Co. against defendant Hyde Manufacturing Company. The orders deny plaintiff’s motion for a new trial.) Present — Crosby, P. J., Cunningham, Taylor, Dowling and McCurn, JJ.