Opinion
December 30, 1936.
Present — Lazansky, P.J., Young, Johnston, Adel and Taylor, JJ.
In an action to recover damages for the death of plaintiff's intestate, the complaint charges the defendant-owner of the automobile with negligent operation thereof and the defendants-vendors of the automobile with negligence in the sale and delivery of defective property. The complaint against the defendants-vendors was dismissed at the close of plaintiff's case and judgment was rendered thereafter in plaintiff's favor against the defendant-owner. Plaintiff appeals from only so much of the judgment as dismisses the complaint against defendants-vendors; the judgment against the defendant-owner remaining in force and effect. Judgment, in so far as appealed from, unanimously affirmed, with costs. Defendants-respondents are merely dealers in automobiles manufactured by a manufacturer of national reputation. The negligence alleged against the dealers is the failure to deliver an automobile with an adequate supply of oil in its hydraulic brake control chamber some twelve days before the accident. The proof did not establish the cause of action as alleged against the dealers, nor any cause of action against them. ( Mac Pherson v. Buick Motor Co., 217 N.Y. 382, 394.) The proof did establish negligence in the operation of the automobile.