The court below properly denied plaintiff’s motion to strike out the defense of the Statute of Limitations and the order appealed from should be affirmed. However, I do not subscribe to all that the major opinion declares.
The complaint alleges the date of sale and delivery as on or about December 20, 1938; this suit was begun on December 27,1944; the defendant pleads the six years’ Statute of Limitations as a bar. Plaintiff sues as subrogee and seeks to recover damages from defendant for breach of warranty in the sale of merchandise to its assured, Conrad & Go., Inc.; the latter resold some of the merchandise and the subvendee recovered damages ffom the assured which plaintiff paid under its policy of liability insurance.
Assuming that the Conrad Company had a cause of action against the defendant for breach of warranty it is the view of my colleagues that it aqcrued at the time of sale and Muller against Eno (14 N. Y. 597) and Allen v. Todd (6 Lans. 222) are cited as supporting this premise; if this is so then plaintiff’s cause of action is barred by the Statute of Limitations.
The plaintiff as subrogee succeeded to and acquired the same but no greater rights and remedies than its subrogor possessed; *695this is the established rule (Wanamaker v. Otis Elevator Co., 228 N. Y. 192; 33 C. J., Insurance, § 714; 36 C. J., Liability Insurance, § 114; 60 C. J., Subrogation, § 81; 29 Am. Jur., Insurance, § 1336). “ The rights of insurer against the person whose fault has caused the injury which was the basis of the loss are measured by the rights of insured against such person.” (36 C. J., Liability Insurance, § 115.) Plaintiff is similarly bound and the defense of the Statute of Limitations as a plea in bar is likewise available against it as it would be if the assured had instituted the action.
It is my view that Muller against Eno (supra) may not be taken as a holding that a cause of action for breach of warranty accrues at the time of the sale; the only questions there considered related to the defendant’s right to recoup damages and to the measure of such damages; so the court expressly declared (p. 601); and in view of this it seems to me that the expression in its opinion, “ The promise is broken as soon as made, although the defect may not then be known,” (p. 605) is to be regarded as an extraneous utterance by the judge and as being obiter dictum (Rohrbach v. Germania Fire Insurance Co., 62 N. Y. 47, 58). In Allen v. Todd (supra) a decision by the General Term, Fourth Department, the question presented for consideration was whether the Statute of Limitations commences to run from the making of the contract or from the time of discovery that a breach of warranty resulted; the court held that a cause of action for breach of warranty occurs at the time of the sale and that the statute commences to run from that date. The case went no further on appeal and the point appears not to have been again concretely presented in our appellate courts.
In the absence of a direct ruling by the Court of Appeals or by the Appellate Division of this department adopting the view announced in Allen v. Todd (supra) I am disinclined to follow it; I am of opinion that the rule stated in The E. O. Painter, &c., Co. v. The Kil-Tone Co. (105 N. J. L. 109, 111) is the more correct one, viz., that the breach of warranty occurs upon the delivery of the property sold and that the right of action arises immediately at that time. It impresses me as being both logical and sound to hold that the breach of warranty occurs upon delivery of the property sold and that the cause of action accrues at that time rather than to hold that it accrues at the time of the sale.
We ought to recognize that until delivery there is the impossibility of ascertaining whether the warranty has been broken *696and it seems to *me to be more conducive to accomplishing substantial justice to view such dealing in the light of reality. I feel we should- be rather concerned with the substance of the warranty than with its form and should regard it as prospective particularly where from the nature of the transaction the parties appear to so intend.
In the instant case this feature is of no special significance because the sale and delivery are alleged to have occurred on the same day and the statute has run against the cause of action for breach of warranty whether the date of sale or the date of delivery be considered as the true criterion.
For the reasons stated I concur in the result.
Hammer, J., concurs with Shientag, J.; Eder,.J., concurs in result in opinion.-
Order affirmed.