Log Cabin Rest, Inc. v. Alpine Wine & Liquor Corp.

In an action to recover damages, allegedly suffered by plaintiff by reason of the mislabeling of a quantity of bottled whiskey sold by defendant to plaintiff, order denying defendant’s, motion to dismiss the complaint for insufficiency affirmed, with $10 costs and disbursements. In our opinion the facts alleged in the first cause of action, for breach of warranty, are sufficient, without reference to the allegations of paragraphs Twelfth and Thirteenth, and it is not necessary on this appeal to determine whether plaintiff may recover damages for all of the injuries therein alleged. Neither is it necessary, since the motion to dismiss was directed against the entire complaint, to determine whether or not the allegations of the second cause of action are sufficient to justify a recovery on the ground of negligence. If either cause of action is sufficiently pleaded, a motion to dismiss the complaint for failure to state a cause of action must be denied. (Advance Music Corp. v. American Tobacco Go., 296 N. Y. 79; Schauder v. Weiss, 274 App. Div. 940.) Defendant may answer, if so advised, within ten days after the entry of the order hereon. Nolan, P. J., Carswell, Johnston, Adel and Wenzel, JJ., concur.