Block v. Empire State Doughnut Corp.

Order denying motion of defendant Bogner to dismiss amended complaint as against h'm reversed upon the law, with ten dollars costs and disbursements, and complaint as to him dismissed, with ten dollars costs. The mother was not acting as the agent of her child when she purchased the doughnuts, and consequently there was no privity of contract between the infant plaintiff and said defendant. (Redmond v. Borden’s Farm Products Co., Inc., 245 N. Y. 512; Smith v. Hanson, 228 App. Div. 634; Zotto v. Merkel Brothers, Inc., 229 id. 793.) Lazansky, P. J., Young and Scudder, JJ., concur; Davis, J., concurs in result upon the authorities cited but is not in accord with the principles stated; Carswell, J., dissents.