Opinion
December 28, 1945.
Action to recover damages for trichinosis suffered by respondent herein as a result of eating fresh ham purchased from the appellant by plaintiff Blume. Plaintiff Blume cooked the ham, and respondent, a guest in her home, ate of it. Order granting respondent's motion to set aside the verdict in favor of appellant and for a new trial reversed on the law, with costs, the motion denied, the verdict reinstated, and judgment directed to be entered thereon, with costs. In this action respondent seeks to east the appellant in damages by reason of an alleged violation of the Agriculture and Markets Law, as amended by chapter 797 of the Laws of 1939 and chapter 267 of the Laws of 1940. We are of opinion that the sale of raw pork, under the circumstances disclosed in this record, which, without the knowledge of the vendor, contains live trichinae organisms, is not a violation of section 200 thereof. The statute does not place the duty upon the seller to cook or otherwise treat unprocessed pork where it is ordinarily expected that cooking will take place before it is consumed. (See Agriculture and Markets Law, § 214-b, and the Federal and State regulations referred to therein.) This conclusion applies with greater force to a meat dealer who, as here, operates under the supervision of the United States Department of Agriculture. Hagarty, Acting P.J., Carswell, Johnston, Adel and Lewis, JJ., concur.