## Facts

- Bertha Chysky worked as a waitress for a lunchroom operator and received meals as part of her compensation.
- Her employer bought a cake from Drake Brothers Company, a commercial baker.
- While eating a piece of the cake served by her employer, Chysky bit into a nail baked inside the cake, causing injury and infection that required removal of three teeth.
- Chysky had no contractual relationship with Drake Brothers and did not purchase the cake.
- She sued Drake Brothers solely on an implied-warranty (contract) theory and did not plead negligence.

## Issues

1. Whether an implied warranty that food is fit for human consumption extends to a nonpurchasing third party injured by the food when there is no privity of contract with the seller and no negligence claim.
2. Whether the statutory implied-warranty provisions referring to the “buyer” can be construed to permit suit by an ultimate consumer who was not the buyer.

## Decision

- The New York Court of Appeals reversed the judgment for Chysky and dismissed the complaint.
- The court held that implied warranty is contractual and, under the governing sales statute, runs only to the buyer in privity with the seller.
- Because Chysky was not the buyer and alleged no negligence, she had no cause of action against the manufacturer on an implied-warranty theory.
- One judge dissented without opinion.

## Legal Principles

- Implied warranty under the sales statute arises from the contract of sale and is enforceable only by the buyer who is party to that contract.
- Absent privity of contract, a third party cannot recover against a seller for breach of implied warranty of food fitness when the claim sounds only in contract.
- Expansion of manufacturer liability beyond privity in negligence-based product cases does not eliminate the privity requirement for contract-based implied-warranty claims.

## Conclusion

The court held that a manufacturer’s implied warranty of food fitness does not extend to an employee-consumer who did not buy the product; without contractual privity or a negligence claim, the injured consumer cannot recover on an implied-warranty theory.


Chysky v. Drake Bros. Co., 235 N.Y. 468, 139 N.E. 576 (N.Y. 1923)