Judgments and order unanimously affirmed, with costs. The complaint alleged that defendants were guilty of fraud in the representation which constituted the warranty and, therefore, in contracting the liability which was the basis of the action. In this respect the case differs from Novotny v. Kosloff (214 N. Y. 12), and falls within subdivision 4 of section 549 of the Code of Civil Procedure, and the consequence of failure to prove the fraud was loss of the action. The complaint was properly dismissed. Present — Jenks, P. J., Mills, Rich, Black-mar and Jaycox, JJ.