Opinion
October 17, 1949.
In an action to recover damages for injuries claimed to have been sustained by reason of the negligence of defendant and his alleged breach of a warranty as to a faucet handle, defendant, by cross complaint, has brought in his immediate seller, a jobber, and appellant, the alleged manufacturer of the faucet handle. A motion by the appellant to have respondent separately state and number causes of action in the cross complaint was denied. Order affirmed, without costs. 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.