Robert T. Donaldson, Inc. v. Aggregate Surfacing Corp. of America

• Decision Date: 31 March 1975
• Citation: 366 N.Y.S.2d 194,47 A.D.2d 852
• Parties: , 17 UCC Rep.Serv. 375 ROBERT T. DONALDSON, INC., Respondent, v. AGGREGATE SURFACING CORPORATION OF AMERICA, Appellant, and Giles Varnish Company, Inc., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 194

366 N.Y.S.2d 194

47 A.D.2d 852, 17 UCC Rep.Serv. 375

ROBERT T. DONALDSON, INC., Respondent, v. AGGREGATE SURFACING CORPORATION OF AMERICA, Appellant, and Giles Varnish Company, Inc., Respondent.

Supreme Court, Appellate Division, Second Department.

March 31, 1975.

Clune & O'Brien, Mineola (James M. O'Brien, Mineola, of counsel), for appellant.

Robert I. Skoy Mineola, for plaintiff-respondent.

Before GULOTTA, P.J., and MARTUSCELLO, LATHAM, COHALAN and SHAPIOR, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for breach of express and implied warranties, defendant Aggregate Surfacing Corporation of America (ASC) appeals from a judgment of the Supreme Court, Nassau County, entered March 25, 1974, Inter alia, (1) in favor of plaintiff against ASC and in favor of defendant Giles Varnish Company (Giles) against ASC on the latter's cross claim, upon jury verdicts, and (2) in favor of Giles upon the trial court's dismissal of the complaint against Giles at the close of the entire case.

Appeal dismissed, without costs, insofar as it is from the portion of the judgment which is in favor of defendant Giles upon the trial court's dismissal of the complaint against said defendant at the close of the entire case.

Judgment otherwise modified, on the law and the facts, by deleting therefrom the first, fourth and fifth decretal paragraphs thereof and substituting therefor a provision adjudging that defendant ASC is liable to plaintiff; and, as so modified, affirmed, without costs, and, as between plaintiff and ASC, action severed and new trial granted, solely as to the issue of damages.

Defendant ASC was not aggrieved by the trial court's dismissal of plaintiff's complaint against the codefendant Giles. While we do not agree with the trial court's conclusion that privity is necessary in a breach of warranty action against a remote manufacturer who made no express representations and where the plaintiff did not sustain personal injury but only property damage (see Codling v. Paglia, 32 N.Y.2d 330, 342, 345 N.Y.S.2d 461, 469, 298 N.E.2d 622, 628), the rule enunciated in Stein v. Whitehead, 40 A.D.2d 89, 91--92, 337 N.Y.S.2d 821, 824, is not applicable to a case such as this in which no claim for an apportionment of damages was made under the holding in Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288. ASC's cross claim against Giles sought only indemnity. No objection was taken to the trial court's instruction to the jury that, if it were to find for plaintiff against ASC and for ASC against Giles on the cross claim, the amount of the latter finding must be in the same amount as the former. No claim for an apportionment of damages was made by ASC either before trial, at the trial or on this appeal. We therefore need not reach the question whether in a proper case, such an apportionment may be had in an action for breach of warranty (cf. Noble v. Desco Shoe Corp., 41 A.D.2d 908, 343 N.Y.S.2d 134; Walsh v. Ford Motor Co., 70 Misc.2d...