Opinion
January 28, 1952.
Action to recover damages for personal injuries sustained by plaintiff's intestate as the result of breach of warranty of the fitness of an article of clothing. Order, insofar as appealed from, denying motion of defendant to dismiss the first cause of action as barred by the three-year Statute of Limitations (Civ. Prac. Act, § 49, subd. 6), affirmed, with $10 costs and disbursements. The action for breach of warranty, even though it rests on a tortious or wrongful act committed by the defendant is independent of an action for negligence. The wrongful act is not neglect, and privity is an essential to recovery. ( Greco v. Kresge Co., 277 N.Y. 26, 30, 31, 34, 35; Gimenez v. Great Atlantic Pacific Tea Co., 264 N.Y. 390; Rinaldi v. Mohican Co., 225 N.Y. 70, 75.) This action is controlled by subdivisions 1 and 3 of section 48 of the Civil Practice Act, the six-year statute. Carswell, Acting P.J., Johnston, Adel, Wenzel and MacCrate, JJ., concur. [See post, pp. 918, 1009.]