Puritan Fabrics, Inc. v. Charm Togs, Inc. , 188 Misc. 646 ( 1947 )

Shientag, J.

This is a motion to dismiss the second cause of action for insufficiency in law. The first cause of action is brought against the purchaser of goods from the plaintiff. The second cause of action is on the theory of breach of warranty and is addressed to the party who sold the goods to the plaintiff, which goods, in turn, had been sold to the defendant under the first cause of action. The actual form of this motion is that there is something insufficient in the allegations of the second cause of action for breach of warranty.

There is no defect in the allegations of the second cause of action. The form of the motion, however, is a device to procure an adjudication that a suit of this sort in the alternative against a purchaser and a previous seller amounts to a misjoinder either of causes of action or of parties defendant.

Under familiar principles the provisions of the Civil Practice Act should be liberally construed. The provision as to actions in the alternative when one is in doubt as to which of two parties is liable, is designed to prevent multiplicity of suits and is derived from the English practice. Under the English practice, this joinder is proper, as was held in Payne v. British Time Recorder Co. ([1921] 2 K. B. 1). That case is analogous to the one at bar. There the plaintiff sued his vendee for the purchase price and his vendor for breach of contract in failing to deliver the merchandise according to sample. The court said (p. 11): “ * * * there is one very important question which is common to both defendants •— namely, whether the cards were up to sample. If that is decided the rest of the case is mere fringe.” The reasoning applies to the case at bar.

The motion is denied in all respects.