Majority
p. 829Eladio Lacen, as Administrator, etc., of George Lacen, Deceased, Respondent, v. F. W. Woolworth Company, Appellant, and Another, Defendant.
Order affirmed, with ten dollars costs and disbursements. The affirmative defense pleaded is pertinent only to an action for breach of warranty. The plaintiff states, however, that paragraph tenth of his complaint sets up a cause of action based on negligence, and he avers that he intends to proceed solely on that theory. In view of this, the affirmative defense does not raise an issue and the motion to strike it out was properly granted. Lazansky, P. J., Young, Scudder, Tompkins and Johnston, JJ., concur.