
    (April 26, 1960)
    Jacob Frankel et al., Doing Business under the Name of Marcy Do-Nut and Crullers, Appellants, v. David Berman, Doing Business under the Name of Berman Bakers Equipment, Respondent. David Berman, Doing Business under the Name of Berman Bakers Equipment, Third-Party Plaintiff-Respondent, v. Anita Israel, as Executrix of Louis Israel, Deceased, Third-Party Plaintiff-Respondent. Anita Israel, as Executrix of Louis Israel, Deceased, Fourth-Party Plaintiff-Respondent, v. Saul Wolshine et al., Copartners Doing Business under the Name of Egyptian Polishing and Plating Works, Fourth-Party Defendants-Respondents.
   Appeal by permission of the Appellate Term of the Supreme Court in the First Judicial Department from a determination of said court, entered June 11, 1959, which reversed an order of the Municipal Court of the City of New York, Borough of Manhattan, and the judgment entered thereon, in favor of plaintiffs.

Per Curiam.

No appeal having been taken by the defendant, the determination of the Municipal 'Court insofar as it granted judgment to the plaintiffs against the defendant should not have been disturbed. Plaintiffs’ proof failed to establish the allegations of the complaint or of the cause of action for breach of warranty asserted in the motion to conform the pleadings to the proof. Accordingly, the third-party complaint should be dismissed and that portion of the judgment of the Municipal Court which dismissed the fourth-party complaint should be reinstated. In view of the disposition of the judgment against the defendant, the counterclaim should also be dismissed.

The determination of the Appellate Term directing a new trial should be unanimously reversed on the law, on the facts, and in the exercise of discretion, the subsequent order of the Municipal Court reversed and the motion to correct and amend the decision denied, and the prior judgment of the Municipal Court is modified so as to dismiss the third-party complaint and the counterclaim and, as so modified, reinstated, with costs of this appeal to the third-party defendant against the third-party plaintiff, and to the fourth-party defendant against the fourth-party plaintiff, and without costs to the plaintiffs-appellants.

Botein, P. J., Breitel, Rabin, M. M. Frank and Valente, JJ., concur.

Determination of the Appellate Term unanimously reversed on the law, on the facts, and in the exercise of discretion, the subsequent order of the Municipal Court is reversed and the motion to correct and amend the decision is denied and the prior judgment of the Municipal Court is modified so as to dismiss the third-party complaint and the counterclaim and, as so modified, is reinstated with costs of this appeal to the third-party defendant against the third-party plaintiff, and to the fourth-party defendant against the fourth-party plaintiff, and without costs to the plaintiffs-appellants.  