SIMCHICK v. I.M. YOUNG COMPANY, 38 N.Y.2d 921 (1976)

382 N.Y.S.2d 980, 346 N.E.2d 818

WESLEY SIMCHICK, Respondent, v. I.M. YOUNG COMPANY, Appellant.

Court of Appeals of the State of New York.Argued January 7, 1976
Decided February 26, 1976

Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department,

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WILLIAM R. GEILER, J.

Joseph D. Ahearn and J. Robert Morris for appellant.

Edgar Hills and Irving Kahn for respondent.

MEMORANDUM.

We affirm on the memorandum at the Appellate

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Division (47 A.D.2d 549). In so doing, we note that the quarantine was imposed upon plaintiff’s crop only after cauliflower from his field was tested and found to have an impermissible residue of Endrin. We would also note that the theory of liability was not “strict liability in tort” as stated below (47 A.D.2d, at p 551). Rather, liability was predicated solely upon the seller’s express and implied warranties of fitness and merchantability. (Cf Victorson v Bock Laundry Mach. Co., 37 N.Y.2d 395, 402, 404, n 3.)

Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur.

Order affirmed, with costs, in memorandum.