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PABELLON v. GRACE LINE

November 28, 1950

PABELLON
v.
GRACE LINE, Inc. (COSTON SUPPLY CO. et al., Third party Defendants). RUDMAN & SCOFIELD, Inc. v. McKESSON & ROBBINS, Inc, et al.



The opinion of the court was delivered by: CONGER

Certain third party defendants move to dismiss the amended third party complaint upon the ground that the pleading fails to state a claim upon which relief may be granted. The defendant and third party plaintiff moves to dismiss the complaint on the same ground.

The facts are fairly simple. The plaintiff, a seaman employed aboard the defendant's vessel, the S.S. Santa Isabel, was allegedly injured as a result of 'a violent and explosive disintegration of some of the appurtenances and appliances upon which, and with which, plaintiff was then and there working * * * .' An examination of the plaintiff elicited that the explosion had occurred after he had mixed together a quantity of caustic soda or lye, sold under the name of 'Dearborn Cleaner No. 7', used for cleaning drains, 'Pride' washing powder, a quantity of oxalic acid, and a quantity of cleanser under the brand name of 'Oakite'. The complaint alleges that the injuries were caused by reason of the negligence of the defendant in the circumstances set forth in the complaint.

 The defendant filed a third party complaint impleading the third party defendants and stating three claims for relief. The first claim involves breach of warranty and relief is requested against the companies who supplied the products to defendant. The second claim involves negligence and relief is requested against all of the third party defendants. The third claim is one for contribution from joint tort feasors.

 I believe it is proper first to dispose of the defendant's motion to dismiss the complaint. The pleading states claims for damages for injuries and for maintenance and cure. In the first claim the plaintiff alleges the unseaworthiness of defendant's vessel and defendant's negligence. Whether liability may be imposed upon defendant depends upon the circumstances under which the explosion occurred such as instruction, custom in mixing certain cleaning products and the like. I, therefore, deny the defendant's motion.

 The first claim of the amended third party complaint alleges that the various products were supplied to the defendant, pursuant to contract, and that the third party defendants, each for its own product,

 ' * * * impliedly represented and warranted to the third-party plaintiff that said materials were fit and safe for cleaning purposes, including their use as cleaning agents when mixed together or brought in contact with each other both when in a water solution and when dry during the process of cleaning, well knowing that the same were to be used for that purpose by the third party plaintiff and by its employees, servants and seamen; * * * .' (Paragraph 'Eleventh')

 It is further alleged that these products were not fit and safe for cleaning purposes but rather were dangerous and liable to explode when said products were mixed together both in water and when dry or were brought in contact with each other.

 Upon the basis of this warranty the third party plaintiff seeks indemnity from the third party defendants.

 The original third party complaint was dismissed for insufficiency upon motion of Oakite Company by Judge McGohey in a memorandum dated August 17, 1950.

 Section 96, subdivision 4 of the New York Personal Property Law reads: 'In the case of a contract to sell or a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose.'

 It is plain that this subdivision renders completely insufficient the first claim of the amended third party complaint against Coston Supply Company, and Oakite Company. See, for example, Sure Seal Co. v. Loeber, 171 App.Div. 225, 157 N.Y.S. 327, 1st Dept., 1916; Ellen v. Heacock, 247 App.Div. 476, 286 N.Y.S. 740, 4th Dept., 1936.

 The third party plaintiff argues that subdivision 4 is limited by subdivision 1 of the same section which provides for an implied warranty of fitness where the buyer, expressly or otherwise, makes known to the seller the particular purpose for which the goods are required and the buyer relies on the seller's skill and judgment and by subdivision 2 which refers to good bought be description. The simple answer to this argument is that the amended third party complaint does not remotely suggest any basis for reliance upon these subdivisions. They might have particular application to the Durkee Company, Inc., which apparently sold a product of no brand name to Grace, but of course there is nothing indicative of even probable application.

 The motion to dismiss with respect to the first claim of the third party complaint is granted as to Coston Supply Company, Oakite Company and Durkee Company, Inc. ...


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