Deal v. Lilyan Bertell, Inc.

No sound reason is advanced why the retailer defendant should not bring into the action as a party defendant its vendor from whom it purchased the dress which it sold to the female plaintiff under a warranty of fitness and which allegedly caused the injuries complained of. The cause of action of the husband of the purchaser of the dress is not based on negligence, and no privity of contract existed between him and the retailer defendant. It is apparent that the order of November 18, 1937, requires Pecci, Inc., to plead or move in respect to the claim of the defendant-appellant, not to plaintiff’s complaint.

Order dated December 17, 1937, reversed, with ten dollars costs, and order dated November 18, 1937, reinstated.

All concur. Present —• Hammer, Shientag and Noonan, JJ.