Opinion
May 16, 1949.
Present — Johnston, Acting P.J., Adel, Sneed, Wenzel and MacCrate, JJ.
In an action to recover damages for breach of warranty in connection with the packing and sale of 100 cases of canned tomatoes, in which there is a third party action by defendants to recover over against the canner, judgment of the City Court of the City of White Plains modified on the law and the facts by striking out the last decretal paragraph and substituting in place thereof a paragraph providing that the third party plaintiffs recover from the third party defendant the sum of $140, plus interest from October 14, 1947, and costs. As thus modified, the judgment is unanimously affirmed, with costs to plaintiff-respondent only. The canner is liable for the merchandise that was proved to be defectively packed. The wholesalers are not entitled to recover from the canner for the misbranding done by the wholesalers.