In the opening sentence of Codling v. Paglia (32 N Y 2d 330, 335) the Court of Appeals stated: “We hold that today the manufacturer of a defective prdduct may be held liable to an innocent bystander, without proof of negligence, for damages sustained in consequence of the defect. ’ ’ This, and nothing more, appears to be the holding *327of that case. In the course of the opinion the court noted that its holding was made under a “ doctrine of strict products liability ” (p. 342) and then enunciated the now familiar Codling test which, in essence, requires that the plaintiff establish whether, at the time of injury or damages, the allegedly defective product was being used properly for its intended purpose, and whether the plaintiff was free from contributory negligence.
I read Codling as having removed the remaining “ filiar ” from the beleaguered citadel of privity, thus completing the trend in New York law toward, extending to “ any ” person injured by a defective product the full benefits of the express and implied warranty protection contained in the Uniform Commercial Code, provided the test above referred to is met (cf. MacPherson v. Buick Motor Co., 217 N. Y. 382; Turner v. Edison Stor. Battery Co., 248 N. Y. 73; Blessington v. McCrory Stores Corp., 305 N. Y. 140; Randy Knitwear v. American Cyanamid Co., 11 N Y 2d 5; Goldberg v. Kollsman Instrument Corp., 12 N Y 2d 432).
Unlike the majority, I do not believe that the Codling holding requires us to infer that the viability of Mendel v. Pittsburgh Plate Glass Co. (25 N Y 2d 340) has been diminished. I am not unmindful of the language contained in Veles v. Craine & Clark Lbr. Corp. (33 N Y 2d 117, 124-125), wherein the court stated that “ strict products liability sounds in tort rather than in contract.” There is nothing novel in this pronouncement.
In Goldberg (supra p. 436) the court stated: “A breach of warranty, it is now clear, is not only a violation of the sales contract out of which the warranty arises but is a tortious wrong suable by a noncontracting party whose use of1 the warranted article is within the reasonable contemplation. of the vendor or manufacturer” (emphasis supplied). Yet when the above-quoted language was advanced to the court in Mendel for the proposition that “ Goldberg v. Kollsman Instrument Corf. * * * created in favor of third-party strangers to the contract, a cause of action in tort and not in warranty ” (p. 343, last two emphases supplied), the Mendel court rejected the proposition and held: “ 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 ” (pp. 343-344).
Indeed, the court in Mendel stated that “ strict liability in tort and implied warranty in the absence of privity are merely *328different ways of describing the very same cause of action ” (p. 345). This is a clear recognition of the principle that liability for a breach of warranty is ‘ ‘ strict ’ ’ only in the sense that no element of fault is involved.
The terminology employed in the area of products liability, i.e., “ strict liability in tort” and “ strict products liability”, has resulted in some confusion. Language utilized in the Codling ease must therefore be interpreted against the background of cases which preceded it.
In Codling the court did not establish a new tort liability meant to replace the statutorily established Uniform 'Commercial Code action for ¡breach of warranty. I disagree with the majority’s view that the code action can exist side by side, as it were, with the court “ enacted ” action for the same relief sounding strictly in tort and governed by a different Statute of Limitations.
The effect of the majority’s holding is to judicially “ repeal ” those provisions of the Uniform Commercial Code imposing a four-year Statute of Limitations, from the date of sale, on actions where the plaintiff seeks damages for personal injuries based upon breach of warranty. I find the comments of the court in Mendel with respect to sections 2-7-25 and 2-318 of the Uniform 'Commerical Code particularly pertinent and determinative.
I cannot agree with the view of my brethren that an action for breach of warranty with its concomitant contract period of limitation is 1 ‘ clearly unjust ’ ’, in that it is grounded on a wholly arbitrary basis of a period of time' which bears no relation to the time of injury.
The fact that the four-year Statute of Limitations was made applicable to breach-of-warranty actions represents a legislative determination that at some time a manufacturer’s contractual obligations should be put to rest. Thus, section 2-725 of the Uniform Commercial Code provides, inter alia, a four-year period measured from the time of sale for the commencement of an action based upon breach of warranty “ regardless of the aggrieved party’s lack of knowledge of the breach ” (subd. [2]). 'CPLR 201 provides, inter alia, that ‘ ‘ no court shall extend the time limited by law for the commencement of an action,” In my opinion, the Legislature has clearly spoken in this -area. If so basic a tenet is to be changed, it should be done by the Legislature and not by the courts.
The availability of an action in negligence leaves the plaintiff with a viable remedy where the warranty period of limitation *329has expired. In Codling (32 N Y 2d 330, 337, sufra) this portion of the Trial Judge’s charge was held sufficient: “ ‘While the burden is upon the' plaintiff to prove that the product was defective and that the defect existed while the product was in the manufacturer’s possession, plaintiff is not required to prove the specific defect, especially where the product is complicated in nature. Proof of necessary facts may be circumstantial ’ ”. Thus, a person injured by a defective product may elect to pursue an action in common-laiw negligence or an action for breach of warranty, provided it is not time-barred.
In addition, I disagree with the reading given by the majority to the Official fComment .to section 2-318 of the Uniform Commercial Code. There is nothing in that comment which indicates that the code does not provide the exclusive remedy in strict liability cases. ■
Accordingly, as above indicated, the branch of the plaintiffs ’ motion which was to amend the complaint to assert a cause of action in strict products liability on behalf of the infant plaintiff should have been denied. The order under review should be reversed, the plaintiffs’ motion denied and the cross motion of defendant Bock Laundry Machine Company granted.