SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
June 11, 1968
CARL GUTMANN & CO., INC., RESPONDENT,
DAN RIVER MILLS, INCORPORATED, APPELLANT
Concur -- Botein, P. J., Steuer, Capozzoli, McGivern and Rabin, JJ.
The complaint contains allegations which sound either in indemnity or in breach of warranty, or in both. While the plaintiff indicates that the action is one merely for indemnity, that does not make it so. The allegations in the complaint govern and, as indicated, under the complaint in this action, a recovery can conceivably be had in indemnity or breach of warranty. What form the action will take will, of necessity, depend on the proof ultimately submitted upon trial. If it be in the nature of breach of warranty, the defense of Statute of Limitations would be proper (see Liberty Mut. Ins. Co. v. Shiela-Lynn, Inc., 185 Misc. 689, affd. 270 App. Div. 835.) Therefore, the defense should not be stricken. The Trial Judge will then be free to rule in connection with that defense, depending on the proof submitted.
Order entered July 10, 1967, unanimously reversed, on the law and on the facts, without costs or disbursements to either party, and the motion to strike the affirmative defense of the Statute of Limitations is denied.
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