Mesick v. Polk

— Order denying appellants’ motion to dismiss the complaint for failure to state facts sufficient to constitute a cause of action affirmed, with $10 costs and disbursements. No opinion. Lewis, P. J., Carswell and Johnston, JJ., concur; Hagarty and Adel, JJ., dissent and vote to reverse the order and to grant the motion, with the following memorandum: The complaint alleges that appellants, wholesale toy distributors, purchased from the manufacturer certain metal cylinders filled with carbon dioxide gas under pressure, and sold them to a retail toy dealer, who in turn sold one such cylinder to the infant plaintiff; that appellants knew or should have known that children purchased and used such cylinders for propelling miniature airplanes by release of the gas therein, but failed to give notice or warning that the cylinders -would or might explode upon being subjected to heat. The allegations of the complaint, treated as facts, do not show that appellants were in the status of anything other than mere vendors, or that they owed the duty of reasonable care to respondents, with whom they had no contractual relations. And this is so whether or not the cylinders be regarded as having inherently dangerous characteristics. (Comrs. State Insurance Fund v. City Chemical Corp., 290 N. Y. 64, 69.) There is no allegation of facts showing any defect in the construction of the cylinder causally connected with the injuries, and for the existence of which appellants would be liable to respondents. The complaint does not state a cause of action against appellants. [See post, p. 936.]