1918.] Opinion, per ANDREWS, J. [225 N. Y.] the liability of sellers who were growers and manufacturers and others was ended. A warranty may now be established by proof of the usage of trade. Although an express warranty of quality is given, one not inconsistent with it may also be implied. Having in view the purpose of the article and the fact that in some states no implied warranty based on grounds other than those which affect every sale of a chattel was enforced, we have no doubt that section 96, expressed as it is in general terms, applies to all sales, including sales of food, and that any rules hitherto applied inconsistent with this section are abolished. In a sale of food, therefore, there is no longer an implied warranty of fitness unless the buyer expressly or by implication acquaints the seller with the purpose of the purchase and unless it appears that the buyer relies on the seller's skill or judgment. Even then if the buyer has examined the goods and should have discovered the defect there is no warranty. The burden 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 an implied warranty. If either of these two facts do not appear he fails in his claim. Whether they exist or not may often become a question of fact to be solved by the jury. But often also, where the facts are undisputed, and no differing inferences may be drawn from them, the question becomes one of law for the court; and we have to determine just what and how much evidence is necessary to show conclusively the existence of these essential elements. We think that the mere purchase by a customer from a retail dealer in foods of an article ordinarily used for human consumption does by implication make known to the vendor the purpose for which the article is required. Such a transaction standing by itself permits no contrary inferences. In this we agree with the courts [225 N. Y.] Opinion, per ANDREWS, J. [Dec., of Massachusetts. (Farrell v. Manhattan Market Company, 198 Mass. 271-279.) But we think further that such a purchase, where the buyer may assume that the seller has the opportunity to examine the article sold, ✓ unexplained, is also conclusive evidence of reliance on the seller's skill or judgment. We here limit the rule. We do not pass upon the question as to whether it applies to a sale in the original package bought by the vendor from others. In such circumstances it is possible that the inference of reliance would not be properly deduced from the purchase alone. But on the other hand we do not lay stress on the question as to whether the particular article was selected by the buyer or by the seller. That may or may not be important. If the buyer selects one chicken from twenty offered him, exercising his judgment as to its wholesomeness, clearly he does not, or at least may not rely upon the dealer's skill. But where the buyer selects one of the twenty for some reason unconnected with its fitness for food and exercising and having no judgment on that question - makes the selection because the color is pleasing or the weight suitable, then he is relying upon the dealer no less than when the selection is made by the latter. He assumes that the dealer knows and has the means of knowing that all are fit for food. It is a matter about which ordinarily the purchaser knows and can know nothing. Therefore, in case of a purchase of unwholesome meat from a market after section 96 went into effect, 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. If it does not appear that the buyer has examined the goods or, having examined them, has failed to discover defects 1918.] Opinion, per ANDREWS, J. [225 N. Y.] which he should have found, precisely such an implied warranty exists as the court said existed in all cases whenever a dealer sold food. Such is the case before us. On December 16th, 1915, the plaintiff bought a loin of pork at a market owned by the defendant. The meat was infested with trichinæ. She cooked and ate it and was made ill. The action was brought to recover for the resulting damages. It was not tried on any theory of negligence or fraud but upon that of implied warranty. The jury found a verdict for the plaintiff and the judgment has been affirmed in the Appellate Division. The plaintiff found no defect in the meat. The court submitted to the jury the question as to whether she could have found such a defect if she had used reasonable care. And finally the defendant insists strenuously that no such defect could have been discovered. There is no question but what such an action for damages caused by the breach of the implied warranty with regard to food may be maintained, at least by him to whom the warranty is made. Whether in favor of others we do not determine. (Gearing v. Berkson, 111 N. E. Rep. 785.) The judgment of the Appellate Division should be affirmed, with costs. HIS COCK, Ch. J., COLLIN, CUDDEBACK, CARDOZO, POUND and CRANE, JJ., concur. Judgment affirmed. [225 N. Y.] Statement of case. [Dec., MAY D. HOPKINS, Respondent, v. CONNECTICUT GENERAL LIFE INSURANCE COMPANY, Appellant. Insurance accident standard provisions of policy not whole contract - rider part of policy and should be filed with superintendent of insurance effect of failure to file — rider which does not contradict or vary standard provisions valid classification of risks provision that change in policy must be approved by officer of company is for benefit of insurer provision that clause reducing indemnity must be printed in bold-face type when not applicable to rider. 1. The standard provisions for accident insurance policies contained in section 107 of the Insurance Law (Cons. Laws, ch. 28) are to be contained in every such contract of insurance, but they form simply a part, not the whole thereof. 2. A rider to a policy of accident insurance is a part thereof and, therefore, within the requirement of the statute (L. 1913, ch. 155, § 107, subd. a) that no policy shall be issued until a copy of its form shall have been filed with the superintendent of the insurance department. Failure to file a rider, however, does not invalidate the policy, but whenever its provisions conflict with subdivision i of section 107 the latter is to govern the rights of the parties. 3. A rider to a policy of accident insurance, by which the insured agreed that the policy should not cover any loss caused directly or indirectly by any act of any of the belligerent nations engaged in the present European war, does not conflict with or vary any of the provisions of section 107 of the Insurance Law and is valid and binding upon the insured, subject only to construction as provided by that section, notwithstanding that it had not been filed with the superintendent of insurance. 4. A suggestion that the rider changes the classification of risks cannot be sustained since such classification, in accident insurance policies, relates only to the occupation of the applicant. 5. The provision in the policy that no change therein shall be valid unless approved by the executive officer of the insurer is for the benefit of the insurer and may be and in this case was waived by it. Furthermore, the policy was not changed where, at its inception, it included the rider. 6. An objection that under the statute it is provided that no policy shall be issued unless such portion of the policy as purports by reason of the circumstances under which a loss is incurred to reduce any 1918.] Points of counsel. [225 N. Y.] indemnity promised therein to an amount less than that provided for the same loss occurring under ordinary circumstances, shall be printed in bold-face type and that the rider comes within this clause and is not printed in bold-face type cannot be sustained. It speaks of a case in which the policy does not apply and is simply a limitation of the risk. The rider in question does not in any sense reduce an indemnity provided for in the policy, hence does not come within the clause requiring a rider to be printed in bold-face type. Hopkins v. Conn. General Life Ins. Co., 174 App. Div. 23, reversed. (Argued November 25, 1918; decided December 10, 1918.) APPEAL from a judgment, entered August 4, 1916, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term without a jury and directing judgment in favor of plaintiff. The nature of the action and the facts, so far as material, are stated in the opinion. Charles E. Hughes and George Coggill for appellant. Section 107 of the Insurance Law does not require forms of riders to be filed or approved. (Nelson v. Traders Ins. Co., 181 N. Y. 472.) The validity of the war rider, being an integral part of the contract of insurance, is expressly recognized by section 107 of the Insurance Law, notwithstanding the fact that the rider was not filed or approved by the superintendent of insurance. (Kneetle v. Newcomb, 22 N. Y. 249; Chemung Bank v. Payne, 164 N. Y. 252.) The fact that no approval by an executive officer of respondent was indorsed on the war rider or policy does not invalidate it, nor require its elimination from the contract of insurance. (Insurance Co. v. Norton, 96 U. S. 234; Bini v. Smith, 36 App. Div. 463; Etna Life Ins. Co. v. Frierson, 114 Fed. Rep. 56; Assurance Co. v. Building Assn., 183 U. S. 308; Whipple v. Prudential Ins. Co., 222 N. Y. 39; Wood v. A. F. Ins. Co., 149 N. Y. 382; Stewart v. U. M. Life Ins. Co., 155 N. Y. |