Opinion
March 29, 1951.
Appeal from the Municipal Court of the City of New York, Borough of Manhattan, WAHL, J.
Jay F. Korth and Matthew E. Lawless for appellant.
Morris Levine for respondent.
Plaintiff became nauseous and ill immediately upon discovering that she was drinking from a Coca Cola bottle which contained pieces of cork from a crushed bottle cap that was in the bottle. An action for breach of an implied warranty does not lie on these facts. ( Copeland v. Woolworth Co., 62 N.Y.S.2d 660.) Nor can plaintiff recover if the claim is that the continued illness was caused by drinking the beverage. There was no proof that the cork and bottle cap rendered the beverage unfit for human consumption, nor any evidence to show that the illness was due to the condition of the beverage. ( Weinberg v. Doelger Brewing Co., 174 N.Y.S. 69.)
The judgment should be reversed, with $30 costs and judgment directed for defendant dismissing the complaint on the merits, with costs.
HOFSTADTER, SCHREIBER and HECHT, JJ., concur.
Judgment reversed, etc.