C. K. S., Inc. v. Helen Borgenicht Sportswear, Inc. , 22 A.D.2d 650 ( 1964 )

Order and judgment unanimously affirmed, with $50 costs to the third-party defendant-respondent. No opinion. Order, entered January 7, 1964, unanimously reversed, on the law, with $30 costs and disbursements to the third-party defendant-appellant-respondent, and the motion of third-party defendant-appellant-respondent to dismiss the third-party complaint granted, with $10 costs. The action against third-party defendant-appellant-respondent was commenced by service of a summons and complaint November 15, 1963. The third-party complaint alleges that the third-party defendant-appellant-respondent in 1956, sold cloth to third-party plaintiff which was not of a merchantable quality and unfit for its intended use. Third-party plaintiff attempts to spell out a cause of action for possible future indemnity and a cause of action for breach of warranty. The only cause of action which plaintiff may assert upon the factual situation here presented is one for ‘breach of warranty. As such the action is subject to the six-year Statute of Limitations and is clearly barred (GPLR 213, subd. 2; Liberty Mut. Ins. Go. v. Sbeila-Lynn, Ine., 185 Mise. 689, affd. 270 App. Div. 835; Schwartz v. Eeyden Ghem. Gorp., 12 N Y 2d 212, 215). In light of the foregoing disposition the appeal of the defendant and third-party plaintiff-respondent-appellant is dismissed. Concur — Valente, J. P., McNally, Stevens, Eager and Witmer, JJ.