Aegis Productions, Inc. v. Arriflex Corp. of America
| Decision Date | 15 March 1966 |
| Citation | 25 A.D.2d 639,268 N.Y.S.2d 185 |
| Parties | , 3 UCC Rep.Serv. 298 AEGIS PRODUCTIONS, INC., Plaintiff-Respondent, v. ARRIFLEX CORPORATION OF AMERICA and Kling Photo Corporation, Defendants-Appellants. ARRIFLEX CORPORATION OF AMERICA, Third-Party Plaintiff-Appellant, v. GENERAL RADIO COMPANY, Third-Party Defendant. |
| Court | New York Supreme Court — Appellate Division |
M. J. Lillienstein, New York City, for plaintiff-respondent.
J. M. Percy, New York City, for defendants-appellants.
Before STEVENS, J.P., and EAGER, STEUER and STALEY, JJ.
Order entered on August 25, 1965, denying motion to dismiss first cause of action unanimously affirmed without costs or disbursements. The first cause of action alleges that the plaintiff purchased a housing for a motion picture camera which it already owned. It is not alleged that either of these articles was purchased from defendant, and presumably they were not. When plaintiff attempted to use the camera with the housing, certain difficulties arose. The complaint sets these out in detail, but it is sufficient for the purposes of this determination to say that a recording device which showed the number of exposures per second did not accord with the number actually taken by the camera. Plaintiff consulted defendant, who undertook to make the necessary adjustments. After twice taking the camera to its place of business, defendant returned it and stated that the camera was now in proper working order. Plaintiff further alleges that the adjustments were such that the device appeared to be synchronized but actually was not. The consequence was that plaintiff used the camera to make a moving picture which was spoiled by the defective timing. The pleading is far from a model of the pleader's art. It is replete with allegations that are suitable to a cause of action for breach of warranty. But by careful attention it can be discerned that breach of a contract to repair or adjust the mechanism is alleged. This undoubtedly constitutes a cause of action. However, on the trial plaintiff might well urge that its cause of action is for breach of warranty, and point to this affirmance as confirmation. Actually, there is no such cause of action. Warranties are limited to sales of goods. No warranty attaches to the performance of a service (Perlmutter v. Beth David Hosp., 308 N.Y. 100, 123 N.E.2d 792). If the service is performed negligently, the cause of action accruing is for that negligence. Likewise,...
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