Opinion
April 6, 1942.
Present — Lazansky, P.J., Hagarty, Johnston, Taylor and Close, JJ.
In an action by plaintiffs against defendant packer and defendant retailer to recover damages for injuries sustained from eating a processed salami which contained trichinae, a finding by the trial court that defendant packer improperly applied a recognized method for the destruction of trichinae in the curing of its product was not against the weight of evidence; nor was its finding that plaintiffs were free from contributory negligence. The violation by defendants of the duty imposed upon them by sections 199-a and 200 of the Agriculture and Markets Law not to process or sell an article of food which is adulterated constituted an actionable wrong. The salami, processed by defendant packer for consumption without cooking or further processing and so sold by defendant retailer to one of the plaintiffs, and found by the trial court to contain trichinae sufficient to render plaintiffs ill, would be deemed adulterated so as to be unfit for food within the meaning of subdivision 3 of section 200 Agric. Mkts. of the Agriculture and Markets Law. Since the salami was unfit for food there was also a breach of the implied warranty of the fitness of food for human consumption, and recovery over by defendant retailer against defendant packer was properly allowed. Judgment, in so far as appealed from, unanimously affirmed, with costs.