[225 N. Y.] Opinion, per HISCOCK, Ch. J. [Dec., excavations it allowed this uprising strip of bottom to exist. We think that these instructions were altogether too favorable to the plaintiff and very unfavorable to the defendant. In our opinion the trial court instead of defining the rights and obligations of the parties by rigid rules of law as he did, should have permitted them to be determined by the flexible judgment of the jury under those tests of reasonable conduct and ordinary prudence which are so familiarly applied to the solution. of such situations as arose here. (Davidson S. S. Co. v. United States, 205 U. S. 187.) Take the case of the plaintiff to whom is attributable the conduct of the pilot. The jury could have said upon the evidence as now presented that the latter was chargeable with knowledge that the old canal at this point was in process of being widened to the dimensions of the barge canal and that he was steering plaintiff's boat beyond the lines of the original canal into the space of new construction where it was fairly to be apprehended that there might be incomplete excavations and resulting dangers to navigation. If the jury did thus determine they could have found that this was taking unreasonable chances and that contributory negligence was chargeable to plaintiff which barred a recovery. But again, while they might have taken this view, we think the evidence also permitted them to take a different one which alike would exonerate plaintiff from the imputation of contributory negligence and impose upon defendant responsibility for the fault of negligence. They might have said that with the obliteration of old lines by new construction a pilot ought not to be charged with knowledge of the exact location of those old lines; that there was nothing in the appearance of the waterway to indicate that the work of excavation was uncompleted or to make a man of reasonable prudence apprehensive that if he steered a 1918.] Opinion, per HISCOCK, Ch, J. [225 N. Y.] short distance beyond the line of the old channel he would encounter a small uprising and dangerous space in the midst of what was otherwise perfectly safe navigation, and, therefore, that warning ought to have been given of this threatening condition by buoys, lights or other proper means. If their minds traveled in this direction the jury could have found the defendant to have been negligent. Without attempting of course to detail all the circumstances or to formulate the exact language in which instructions should have been given to the jury, the foregoing is a statement of the principles which should have underlaid and governed those instructions. As has been pointed out, the ones which were actually given were far away from them and were prejudicial to an extent requiring a reversal of the judgment. Some other questions are argued which may be briefly answered for guidance upon the new trial. It was not error to exclude evidence of the witness Gallagher concerning alleged statements made by the witness Gillson that the accident to plaintiff's boat really happened at another place. Gillson had no personal knowledge and could give no evidence in respect of this subject. Any statements he may have made were not a subject of proof. It was of course improper to instruct the jury that they must add interest to the amount, if any, which they should award as damages for the injury to plaintiff's boat. The judgment should be reversed and a new trial granted, with costs to abide the event. COLLIN, CUDDEBACK, CARDOZO, POUND, CRANE and ANDREWS, JJ., concur. Judgment reversed, etc. [225 N. Y.] Statement of case. [Dec., ANNA M. RINALDI, Respondent, v. THE MOHICAN COMPANY, Appellant. Food - implied warranty as to wholesomeness action may be maintained for breach when such implied warranty exists - when inaccurate charge harmless. 1. Under section 96 of the Personal Property Law (Cons. Laws, ch. 41) there is no implied warranty of fitness in a sale of food unless the buyer expressly or by implication acquaints the seller with the purpose of the purchase and it appears that the buyer relies on the seller's skill or judgment. This section applies to all sales, including sales of food, and any rules hitherto applied inconsistent with it are abolished. If, however, the buyer has examined the goods there is no The burden warranty as to defects which he should have discovered. of showing that he has made known his purpose and that he has relied upon the seller is on him who claims the existence of the implied warranty. 2. The mere purchase by a customer from a retail dealer in foods, however, of an article ordinarily used for human consumption, by implication, makes known to the vendor the purpose for which the article is required and, where the buyer may assume that the seller has the opportunity to examine the article sold, such a purchase, unexplained, is conclusive evidence of reliance on the seller's skill and judgment. 3. In an action, therefore, to recover damages for sickness caused by eating unwholesome meat purchased by plaintiff from defendant, where all that appears is the ordinary transaction between dealer and customer, a charge to the jury that on every sale of food by a dealer for immediate human consumption there is an implied warranty of its wholesomeness, while inaccurate, is harmless, since if it does not appear that the buyer has examined the goods or, having examined them, has failed to discover defects which he should have found, such an implied warranty exists. Rinaldi v. Mohican Co., 171 App. Div. 814, affirmed. (Argued November 21, 1918; decided December 10, 1918.) APPEAL from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered March 8, 1916, affirming a judgment in favor of plaintiff entered upon a verdict. 1918.] Opinion, per ANDREWS, J. [225 N. Y.] The nature of the action and the facts, so far as material, are stated in the opinion. L. B. Mc Kelvey and William H. Foster for appellant. The doctrine of implied warranty in the sale of food products has never been applied in this state to facts like those presented in the case at bar. (State v. Sturgis, 222 U. S. 315; Van Bracklin v. Fonda, 12 Johns. 467; Wright v. Hart, 18 Wend. 449; Divine v. McCormick, 50 Barb. 116; Burch v. Spencer, 15 Hun, 504; Moses v. Mead, 1 Denio, 378; Julien v. Laubenberger, 16 Misc. Rep. 646; Goldrich v. Ryan, 1 E. D. Smith, 324; Cotton v. Reid, 25 Misc. Rep. 380; Money v. Fisher, 92 Hun, 340.) Charles G. Fryer for respondent. A retail dealer in meats and provisions impliedly warrants the soundness and wholesomeness of meats or provisions sold for domestic use and immediate consumption as human food and is liable for damages if they prove unwholesome whether he was aware of their condition or not. (Race v. Krum, 222 N. Y. 410; Leahy v. Essex Co., 164 App. Div. 903; Zelkel v. Oneida C. C. Co., 104 Misc. Rep. 251; Van Bracklin v. Fonda, 12 Johns. 468; Rothmiller v. Stein, 143 N. Y. 581; Fairbanks Canning Co. v. Metzger, 118 N. Y. 260; Hart v. Wright, 17 Wend. 267; Divine v. McCormick, 50 Barb. 116; Kinch v. Haynes, 58 Misc. Rep. 499; Miller v. Scherder, 2 N. Y. 262; Swain v. Schiffelin, 134 N. Y. 471; Davis Prov. Co. v. Fowler Bros., 20 App. Div. 626; 163 N. Y. 580.) ANDREWS, J. We have held as to a sale of food for immediate consumption made before September 1st, 1911, by a dealer who makes or prepares the articles sold that there is an implied warranty of wholesomeness. (Race v. Krum, 222 N. Y. 410.) That is as far as any decision [225 N. Y.] Opinion, per ANDREWS, J. [Dec., of ours has gone. In Maxwell v. Marsh (173 App. Div. 1003; affirmed, without opinion, 225 N. Y. -), where tainted meat was sold in 1913, a charge to the jury that such a warranty was to be implied was made without objection. It became, therefore, the law for that case. Yet in Race v. Krum, in an opinion in which all the members of the court concurred, there was a full discussion of the rule in this state and the conclusion was reached deliberately " that accompanying all sales by a retail dealer of articles of food for immediate use there is an implied warranty that the same is fit for human consumption." This was an exception to the general rule regarding the sale of other chattels based on grounds of public policy. The opinion, however, expressly refused to consider whether such a warranty existed in the case of hotel proprietors or those engaged in a similar business. On September 1st, 1911, section 96 of the Personal Property Law (Cons. Laws, ch. 41) took effect. It provided that there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods sold except, among other cases, "where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not)." If, however, the buyer has examined the goods there is no implied warranty as regards defects which such an examination should have revealed. Article 5 of the Personal Property Law is not merely a codification of the existing rules regarding sales in this state. It was the design as far as possible to make our law uniform with the legislation and laws on this subject existing throughout the country. To this end changes were made in what had previously been here the law. In section 96 itself, for instance, the distinction between |