Dorsey Products Corporation et al., Respondents, v. United States Rubber Company, Appellant, 21 A.D.2d 866

Per Curiam. Defendant moves to dismiss the second, third and sixth causes of action in the amended complaint. It is alleged that defendant manufactures a polyester called “Naugatile” and certain related products to be used with it. Plaintiff Dorsey Products Co. entered into a distributorship agreement with defendant for the sale of these products.

It is alleged that defendant made certain statements as to the development and qualities of the “ Naugatile ” products, which statements were made to induce plaintiff to enter into the distributorship agreement and, on the strength of them, plaintiff did so and incurred certain expenses. The second cause of action alleges that these statements were untrue and that defendant made them negligently. The third cause of action alleges that defendant warranted that the “Naugatile” products were of merchantable quality and fit for the purpose for which they were to be sold, and that they were not.

The sixth cause of action is alleged on behalf of plaintiff Naugatile of New York, Inc., a company formed to carry out the distributorship contract, and parallels the second cause of action. As to the third cause of action, the distributorship agreement is attached to the complaint. The agreement contains a specific provision in regard to warranties. By its terms defendant warrants that the product “Naugatile” shall conform in its manufacture to a formula and specifications as set out in an annexed schedule, and that these may be changed from time to time by agreement between the parties.

Any other warranty is disclaimed. That includes any warranty in regard to the application or installation of the product, or its use in connection with other materials. This provision is unambiguous. As the capability of parties to so contract is a matter of right (Personal Property Law, § 152), the cause of action is necessarily defeated (Lumbrazo v. Woodruff, 256 N. Y. 92; Broderick Haulage v. Mack-International Motor Truck Corp., 1 A D 2d 649). The second and sixth causes of action are based on negligent statements. Ordinarily there is no liability for words negligently spoken.

An exception exists where the words spoken are more than a representation but constitute a verbal act (Glanzer v. Shepard, 233 N. Y. 236, 239; Boyle v. Chatham & Phenix Nat. Bank, 253 N. Y. 369, 379). A cause of action can therefore only be supported by some special relationship between the parties (International Prods. Co. v. Erie R. R. Co., 244 N. Y. 331). While here there is merit in plaintiffs’ contention that a relationship does exist which implies a closer degree of trust and reliance than the ordinary buyer-seller relationship, that fact is of no moment in this connection.

The very instrument which creates the relationship belies the claim. It negatives the right to rely on statements or even promises as to quality. There could be no exception because the statements were made negligently. The order should be reversed on the law and the facts and the motion granted, with costs to the appellant.