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Appellate Terms of the Supreme Court of New York, 1960

Norton v. Fello

Norton v. Fello
Appellate Terms of the Supreme Court of New York · Decided January 29, 1960
23 Misc. 2d 924; 206 N.Y.S.2d 229; 1960 N.Y. Misc. LEXIS 3699

Counsel

Hampton <& Dietel (William F. McNulty of counsel), for appellants. Wolinsky S Wolinsky (Melvin Wolinsky of counsel), for respondent.

Norton v. Fello

Opinion of the Court

Per Curiam.

The theory of the action, as pleaded, was breach of warranty. The determination made below was based solely upon negligence. A new trial is required since the issues presented in the breach of warranty action were not considered or passed upon.

*925The judgment should be unanimously reversed upon the law and facts and a new trial ordered, with costs to defendants to abide the event.

Concur — Hart, Di Giovanna and Brown, JJ.

Judgment reversed, etc.

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