Zeller v. Smith — 275 A.D.2d 1054

Majority

p. 1054

Edward Zeller, Plaintiff, v. Isidore Smith, Defendant and Third-Party Plaintiff-Respondent. Haff Supply Co., Inc., Third-Party Defendant, and American Radiator & Standard Sanitary Corporation, Third-Party Defendant-Appellant.

The cross complaint, in form, contains but a single cause of action. In fact, as against the immediate seller to respondent, it contains two causes of action —one in negligence and one for breach of warranty. That defendant has not made any motion. By the fourteenth and nineteenth paragraphs, the pleader may have intended to allege as against the appellant facts which might make it liable for a breach of warranty. Those paragraphs, however, are barren of any allegations of fact showing a warranty by appellant to respondent, and state only conclusions of law. A denial thereof would raise no triable issue. (McClelland v. Climax Hosiery Mills, 252 N. Y. 347 , 351.) Johnston, Acting P. J., Adel, Sneed, Wenzel and MacCrate, JJ., concur.

Cases cited

McClelland v. Mills 252 N. Y. 347 N.Y. 1930-01-07 at 351 p. 1054