Jacob Frankel Et Al. v. David Berman

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 unanimosly 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.