The facts are quite fully set forth in the opinion of Mr. Justice Lupiano.
Two issues are presented. The first concerns the liability of the defendant Jerome Mackey’s Judo, Inc. (Mackey), and the second, the correctness of the trial court’s determination apportioning liability among the retailer A1 Charyn, Inc., and the two suppliers in the chain of commerce, York Bros. *95Wholesale Hardware Co., Inc. (York) and Gardiner Steel Corp. and J. Gerber & Company, Inc. (Gardiner).
The issue as to Mackey is a close one. Although Justice Lupiano’s analysis of the pertinent evidence is cogent and persuasive, I have come to the reluctant conclusion that the theory of liability he developed was not fairly presented by the pleadings, was not clearly understood by the parties to be an issue in the case and was not really litigated. Accordingly, I am in agreement with the court’s opinion that the apportionment of liability to Mackey must be vacated.
I am in full agreement with the trial court’s determination apportioning liability among the retailer and the other suppliers and perceive no error in the nature of the apportionment. The overturning of this aspect of the judgment, and the court’s conclusion that the entire responsibility rests upon the first supplier, Gardiner, under principles of indemnification, seems to me to misperceive the law in this area as it has developed in the wake of Dole v Dow Chem. Co. (30 NY2d 143).
The precise issue here was addressed by the court in two previous cases, Noble v Desco Shoe Corp. (41 AD2d 908) and Hughes v Ataka Amer. (48 AD2d 808). In both cases this court squarely held that the principle of apportionment set forth in Dole was applicable to breach of warranty cases.
In Noble, the following was said (pp 909-910): "In such connection, we have considered the contention made here that the rule of apportionment laid down in Dole should not be extended to breach of warranty cases; but conclude that no distinction should be drawn between actions grounded in negligence and those based on breach of warranty. (Cf. Coons v Washington Mirror Works, 344 F. Supp. 653.)”
In Hughes, the facts were strikingly similar to those presented here and in all significant respects the issue presented was identical. The court noted (p 809) that it was "a strict products liability case, not to be complicated by issues of negligence” and went on to say: "The defect having been concealed and being a substantial factor in the injury, and the product having been used for the purpose sold, it would have been possible to hold more than one defendant liable. (See Codling v Paglia, 32 NY2d 330; Valez v Craine & Clark Lbr. Corp., 32 NY2d 117.) A charge under Dole v Dow Chem. Co. (30 NY2d 143), to provide a basis for apportionment of recovery was rejected, the court holding it improper in a warranty *96case. This court had expressly held to the contrary in Noble v Desco Shoe Corp. (41 AD2d 908).”
The reference in the court’s opinion to a concealed defect is hardly a significant distinguishing factor. If anything, the presence of a concealed defect would be a circumstance supporting indemnification. (Cf. Farr v Armstrong Rubber Co., 288 Minn 83.)
Finally, in a case involving the right of apportionment among parties found strictly liable for abnormally dangerous activities (Doundoulakis v Town of Hempstead, 42 NY2d 440, 451), the Court of Appeals made the following pertinent comment: "Extended discussion is not needed. Since adoption of the new CPLR article 14 (L 1974, ch 742), equitable apportionment of damages may be claimed among 'persons who are subject to liability for damages for the same * * * injury to property’ (CPLR 1401). Nowhere is it required that the liability be predicated upon negligence (see Twentieth Ann Report of NY Judicial Conference, 1975, p 215; 2A Weinstein-KornMiller, NY Civ Prac, par. 1401.13; McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 1401:3, p 362; see, also, Hughes v Ataka Amer., 48 AD2d 808; Noble v Desco Shoe Corp., 41 AD2d 908, 909-910).”
Although the issue in Doundoulakis was clearly different from that presented here, the citation in the opinion of this court’s decisions in Noble and Hughes is surely significant and represents the clearest expression of opinion on the question by the Court of Appeals.
The clear import of this line of cases is further buttressed by the parallel development in this State of the doctrine of strict products liability. As the Court of Appeals noted in Martin v Dierck Equip. Co. (43 NY2d 583, 590) this development has made unnecessary "the distortions previously required to permit injured plaintiffs to recover from those who put defective products into the stream of commerce.” In the final analysis, the conclusion of the court in this case represents a survival, inappropriate under the circumstances, of one of the most important of those distortions, that which required someone who sustained injury from a defective product to sue first the immediate retailer who was then to seek indemnification from his supplier, and so forth down the line.
It does not necessarily follow from the foregoing that indemnification is now unavailable in all breach of warranty or *97strict products liability cases. Certainly it is a disquieting thought to contemplate apportionment of liability between the manufacturer of a product with a concealed defect and a wholly innocent retailer. (See Farr v Armstrong, 288 Minn 83, supra; cf. All-Tronics, Inc. v Ampelectric Co., 44 AD2d 693.) Nor is it easy to accept as just an apportionment between a retailer who sells spoiled canned goods and the manufacturer of the goods.
Conceivably, such circumstances may reasonably be found to come within the concept of vicarious liability, which has been explicitly excepted from the sweep of Dole. (See Rogers v Dorchester Assoc., 32 NY2d 553.) On the other hand, the fair result in those situations might well be reached by an apportionment which fixes full responsibility on the manufacturer where it clearly would belong.
The facts presented here do not warrant any such exceptional treatment. The product in this case was inherently defective, a fact that could have been known to each of those involved in its movement to the ultimate consumer whether they in fact knew it or not. It may well be that Gardiner had the primary responsibility for knowing the nature of the product and for its introduction into the stream of commerce. That judgment was clearly implicit in the apportionment by the trial court.
I find here, however, no such extreme difference in responsibility among those who profited in the movement of the products to the consumer that would require a finder of the facts to apportion responsibility exclusively to the original supplier. The situation may well have been different if the manufacturer had been identified and was a party to the action.
For the reasons set forth above, I would modify the judgment below only to the extent of striking the imposition of liability on Mackey and otherwise affirm, distributing the percentage originally assigned to Mackey among the remaining defendants proportionately.
Sullivan and Ross, JJ., concur with Silverman, J.; Sandler, J. P., and Lupiano, J., dissent in part in separate opinions.
Judgment, Supreme Court, New York County, entered on December 23, 1977, modified, on the law, in the following respects:
*98A. The apportionment of the percentages of liability among all the defendants in said judgment is stricken;
B. All claims by any defendant against third-party defendant Jerome Mackey’s Judo, Inc. for contribution or indemnity, are dismissed; and as among defendants and third- and fourth-party defendants, no portion of the liability shall be apportioned against said third-party defendant Jerome Mackey’s Judo, Inc.;
C. Judgment on the merits is granted in favor of defendant A1 Charyn, Inc. on its claim for full indemnity against defendant York Bros. Wholesale Hardware Co., Inc., and in turn judgment on the merits is granted in favor of defendant York Bros. Wholesale Hardware Co., Inc. on its claim for full indemnity against second third-party defendants Gardiner Steel Corp. and J. Gerber & Company, Inc.;
D. Any defendant or third-party defendant who has paid more than its share of the judgment as adjudicated herein shall be reimbursed therefor by third-party defendants who have paid less than their share thereof;
and the judgment is otherwise affirmed, without costs and without disbursements.