December 4, 1950.
In an action to recover damages for breach of warranty of fitness and merchantability, defendant, as third-party plaintiff, served a summons and complaint on the third-party defendant, its insurer, pursuant to section 193-a of the Civil Practice Act. The court granted the third-party defendant's motion to dismiss the complaint, and the third-party plaintiff appeals. Order granting the third-party defendant's motion to dismiss the complaint, and the judgment entered thereon, reversed on the law and the facts, with $10 costs and disbursements to the third-party plaintiff, and the motion denied, with $10 costs to said third-party plaintiff. ( Brooklyn Yarn Dye Co. v. Empire State Warehouses Corp., 276 App. Div. 611.) Johnston, Acting P.J., Adel and Sneed, JJ., concur; Wenzel, J., concurs on the authority of Brooklyn Yarn Dye Co. v. Empire State Warehouses Corp. ( 276 App. Div. 611) but adheres to the views expressed in his dissenting opinion in that case; MacCrate, J., not voting.