
    I. Burack, Inc., Respondent, v. Metropolitan Plumbing Supply Corp., Appellant.
   In an action to recover damages claimed to be the result of the sale of defective pipe, defendant appeals: (1) from a resettled order of the Supreme Court, Westchester County, dated October 18, 1960, denying its motion to dismiss the second cause of action in the amended complaint, pursuant to rule 107 of the Rules of Civil Practice, on the ground that said cause is barred by the Statute of Limitations; and (2) from the original order of said court, entered July 12, 1960. Resettled order affirmed, with $10 costs and disbursements. By this decision we hold only that the second cause of action as pleaded in the present amended complaint, while it sets forth an additonal cause of action, is not based on new facts. It is based, rather, on the same facts alleged in the original complaint, which fully apprised defendant of the nature of the claim. This decision is not to be construed as precluding defendant from urging upon the trial its defense of the Statute of Limitations pleaded in its answer. The appeal from the original order is dismissed as academic. Nolan, P. J., Beldock, Ughetta, Kleinfeld and Christ, JJ., concur.  