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COURTER v. DILBERT BROS.

19 Misc.2d 935 (1959)

Florence Courter et al., Respondents, v. Dilbert Bros., Inc., Defendant and Third-Party Plaintiff-Respondent. Airlines Food, Inc., Third-Party Defendant-Appellant.

Supreme Court, Appellate Term, Second Department.

April 27, 1959.

Attorney(s) appearing for the Case

Tropp & Steinbock (I. Sidney Worthman of counsel), for Dilbert Bros., Inc., defendant and third-party plaintiff-respondent.

Joseph Luban for Florence Courter and another, respondents.

Galli & Locker (Raymond A. Peterson of counsel), for Airlines Food, Inc., third-party defendant-appellant.

PETTE, J., concurs, with DI GIOVANNA, J.; BENJAMIN, J., dissents and votes to affirm in a separate opinion.

ANTHONY J. DI GIOVANNA, J.

In an oral complaint the first cause of action sought damages from Dilbert for breach of warranty "as the result of a foreign substance in said jar" and in the second cause of action damages from Airlines on the theory of its negligence in the manufacturing, bottling and production of "Simon Fisher Lekvar (prune butter)." Dilbert cross-claimed...

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