I concur in the result and in the opinion of the court insofar as it sustains the cause of action for breach of implied warranty in favor of a nonuser of the product. I write only because the court has failed to distinguish between such a cause of action and one founded on strict tort liability, and indeed it has declared that an action based on strict liability *294in tort may be maintained. The majority write, “ Our decision is one of policy but is mandated by both justice and common sense ” (p. 293). Insofar as the decision rests upon breach of implied warranty I agree with this statement (see Singer v. Walker, 39 A D 2d 90, 95-99; Codling v. Paglia, 38 A D 2d 154); and were it not for the Court of Appeals ’ decision in Mendel v. Pittsburgh Plate Glass Co. (25 N Y 2d 340) in which it expressly refused to adopt the doctrine of strict liability in tort, I would completely agree with the majority opinion.
In Mendel (supra), the court divided 4 to 3 on this precise issue. There the product, a set of glass doors, was sold to a bank in 1958. In 1965 plaintiff was injured in walking through the doors and brought suit against the manufacturer of the doors which had installed them in 1958. The basic issue before the court was whether a cause of action should be permitted to arise as of the date of plaintiff’s injury rather than the date of the sale of the doors in 1958. The court observed (p. 343) that in Blessington v. McCrory Stores Corp. (305 N. Y. 140) it had ‘‘ held the six-year contract Statute of Limitations applicable to an action seeking recovery for personal injuries arising out of a breach of implied warranty * * * 1 although such a breach of duty may rest upon * * * a tortious act The court continued (pp. 343-344) “ The appellants argue that Blessington does not apply to the instant case because our decision in Goldberg v. Kollsman Instrument Corp. (12 N Y 2d 432) created in favor of third-party strangers to the contract, a cause of action in tort and not in warranty and, therefore, the three-year-from-the-time-of-the-injury, rather than the six-year-from-the-time-of-the-sale, limitations period should apply. We do not agree. * * * After determining [in Goldberg] that the causé of action should exist, two ayenues were open to us-}— either to establish, as other jurisdictions already had, a new action in tort, or to extend our concept of implied warranty by doing away with the requirement of privity. While there is language in the majority opinion in Goldberg approving of the phrase ‘ strict tort liability ’, it is clear that Goldberg stands for the proposition that notwithstanding the absence of privity, the cause of action which exists in favor of third-party strangers to the contract is an action for breach of implied warranty.” (Emphasis supplied.) The court held that as a matter of policy it would not embrace a cause of action founded on strict liability in tort (Mendel, supra, p. 346). Although “ strict liability in tort and implied warranty in the absence of privity are merely different ways of describing the very same cause of action” *295(Mendel, supra, p. 345), a careful differentiation of them is necéssary for clear analysis.
In the opening paragraph of his dissenting opinion Judge Bbeitel stated the point of division of the court (p. 346), as follows: “ The issues in this case, are whether a cause of action in so-called strict liability for an unreasonably dangerous condition in a defective product sounds in contract for breach of warranty or in tort, and whether the applicable Statute of Limitations runs from the sale and delivery of the defective product or the date of the injury to the plaintiff.” His persuasive argument in favor of the adoption of a cause of action founded on strict liability in tort did not sway the majority from their policy determination against accepting such a cause of action in New York. As we noted in Ibach v. Donaldson Serv. (38 A D 2d 39, 43), the Mendel decision has been subjected to considerable academic criticism. Nonetheless, it has established the law in New York that injured “ third-party strangers ” have only a cause of action in implied warranty and not one in strict tort liability.
Had the Court of Appeals not recently spoken so directly on this subject, it might be open to our court to make the policy declaration which the majority have done. I would have no hesitancy in joining the court in a precatory statement that we should like the Court of Appeals or the Legislature to adopt a cause of action in strict tort liability. As a jurist on an intermediate court, however, I cannot bring myself to declare to be the law that which the Court of Appeals has so recently refused to adopt.
Since the decision in this case is governed by the application of the extended doctrine of implied warranty, there is no occasion for our court to consider the rejected doctrine of strict tort liability; and since our decision is controlled by the former, this is not a case for presenting to the Court of Appeals the matter of reconsidering its holding in Mendel.
Because of this recent pronouncement by the Court of Appeals in Mendel {supra) that injured “ third-party strangers ” have only a cause of action in implied warranty and not in strict tort liability as that doctrine is recognized in other jurisdictions, I would rest the decision in this case solely on an extension of the doctrine of implied warranty and would refrain from any consideration of strict tort liability.
Del Vecchio, Cardamone and Henry, JJ,, concur; Witmer, J., concurs in. a separate opinion.
Order reversed with costs and motion denied.