Majority
p. 898Claire Hedervary, Respondent, v. Lord & Taylor et al., Defendants, and Gerson-Kaufman Co., Inc., Appellant.
Action to recover damages for personal injuries suffered by plaintiff resulting from the explosion of a smock which she purchased from defendant Lord & Taylor, which bought the smock from appellant, which in turn purchased the material from defendant Lowenstein. Plaintiff was granted a preference under rule 4 of the Nassau County Supreme Court Rules on the theory that, since the cause of action alleged against all three defendants is for breach of warranty, this is an action on contract within the meaning of the rule. Only defendant Gerson-Kaufman Co., Inc., appealed from the order. Order insofar as appealed from reversed
p. 899
on the law, with $10 costs and disbursements, motion denied, with $10 costs, and action against appellant severed. The rule in question does not contemplate a class of cases in which are sought damages for personal injuries, although the cause of action therefor is based nominally in contract. (Bobine V. Carleton Co., 239 App. Div. 833 .) Nolan, P. J., Carswell, Johnston, MaeCrate and Schmidt, JJ., concur.