Cook v. A. Garside & Sons, Inc. ( 1932 )

Cohn, J.

In MacPherson v. Buick Motor Co. (217 N. Y. 382, at p. 389) the court, Cakdozo, J., writing the opinion, said: “ There must be knowledge of a danger, not merely possible, but probable. It is possible to use almost anything in a way that will make it dangerous if defective. That is not enough to charge the manufacturer with a duty independent of his contract.” The application of this language to the instant case requires the granting of the motion to dismiss the complaint. Although injury was a possible consequence of the defective construction of the heel, it was not a probable result. An ordinary heel of a shoe is not an article that is reasonably certain to place life and limb in peril when negligently constructed. (See, also, Field v. Empire Case Goods Co., 179 App. Div. 253.)

The motion is granted, with ten dollars costs, and the complaint dismissed. Order signed.