In an action to recover damages for breach of warranty of fitness and merchantability, defendant, as third-party plaintiff, served a summons and complaint on the third-party defendant, its insurer, pursuant to section 193-a of the Civil Practice Act. The court granted the third-party defendant’s motion to dismiss the complaint, and the third-party plaintiff appeals. Order granting the third-party defendant’s motion to dismiss the complaint, and the judgment entered thereon, reversed on the law and the facts, with $10 costs and disbursements to the third-party plaintiff, and the motion denied, with $10 costs to said third-party plaintiff. (Brooklyn Tarn Bye Co. v. Empire State Warehouses Corp., 276 App. Div. 611.) Johnston, Acting P. J., Adel and Sneed, JJ., concur; Wenzel, J., concurs on the authority of Brooklyn Yarn Bye Co. v. Empire State Warehouses Corp. (276 App. Div. 611) but adheres to the views expressed in his dissenting opinion in that case; MacCrate, J., not voting.