263 A.D. 877 | N.Y. App. Div. | 1942
Appeal from an order denying motion of appellant to vacate and set aside an order obtained by respondent joining appellant as a party defendant, and to' dismiss the supplemental pleading of respondent against appellant on the ground that said pleading fails to state facts sufficient to constitute a cause of action. Order reversed on the law, with ten dollars costs and disbursements, and motion granted, without costs, without prejudice to an application by respondent for a like order upon proper papers. The complaint contains an allegation of an express warranty of fitness of a material for a certain purpose and the breach thereof. The supplemental pleading, asserting a claim against appellant, alleges a breach of an express warranty of merchantability. The respective claims are not the same and, if plaintiff recovers against respondent, it will not follow that respondent would be entitled to recover against appellant. A circular attached to respondent’s affidavit indicates that there may be a breach of warranty to the same effect as alleged in the complaint, upon the basis of which respondent may apply for another order bringing in appellant as a party defendant. Lazansky, P. J., Hagarty, Carswell, Taylor and Close, JJ., concur.