Opinion
June 21, 1943.
Action on behalf of an infant to recover damages for personal injuries sustained by him as the result of the alleged negligence of defendant, and by his father for loss of services and for expenses. Defendant produced and placed on the market a child's game, all the pieces of which it manufactured save a top, which it purchased from another manufacturer and supplied as part of the game, packed in a carton, on the label of which it represented itself as the manufacturer of the game. The wooden rotator of the top contained a spring which, when wound and connected with a metal part, would cause the metal part to spin. The spring was held in place in a hole bored in the center of the rotator by means of a tack inserted through a loop in the spring and into the top of the rotator. Plaintiffs' proof was to the effect that when the infant plaintiff wound the rotator, the tack flew out and struck him in the eye. Judgment dismissing the complaint on the merits, in accordance with the granting of a motion by defendant at the close of plaintiffs' case, reversed on the law and a new trial granted, with costs to appellants to abide the event. The proof warranted a finding that the tack was inadequate for the purpose for which it was used, namely, to hold the spring in place when wound; and the further finding that such inadequacy rendered the top a dangerous thing and likely to cause injury. The liability of the defendant was like unto that of a manufacturer, in that it represented itself to be such. ( Comrs. State Insurance Fund v. City Chemical Corp., 290 N.Y. 64.) The top, moreover, was a part of the finished product or "an assembled entity." ( Smith v. Peerless Glass Co., 259 N.Y. 292, 295.) Close, P.J., Hagarty, Johnston, Adel and Lewis, JJ., concur.