The plaintiff operated a plant for the manufacture of screws and similar objects from brass. The plant was located at 1355 Atlantic Avenue, Brooldyn. The plaintiff had a burglar alarm system installed by Electric Fire Alarm Company, not a party to this action. The alarm .system consisted of a gong which was attached to an outside wall of the building and would be activated if any place of ingress to the building, such as doors or windows, were tampered with. Aside from the ringing of the gong no other notice was provided by this system. As a supplement to its protective system, plaintiff Contracted with defendant Wells Fargo Alarm Services. The service supplied by this defendant was as follows: If the gong was activated a signal was received at defendant’s central office. The signal was conveyed to defendant by means of the telephone wire which served the area. As a part of defendant’s system a somewhat different signal, called an open circuit signal, was received if the telephone wire itself was cut or otherwise tampered with.
The contract between the parties reads: “ The sole duty of the Contractor [defendant Wells Fargo] is to notify the Police Department and the Subscriber by calling on the telephone if a signal is received in the iCentral Station which might indicate illegal entry.”
On May 29, 1970, at 2:05 a.m. defendant received an open circuit signal indicating a break in the telephone line. Within one minute defendant inquired of New York Telephone Company *492(also a defendant here) where the break was located. The telephone company was not able to give an immediate answer. There is some confusion in the record as to when Wells Fargo was advised of the location of the break, but it is conceded Wells Fargo notified neither the police nor the plaintiff.
The following morning when one of plaintiff’s employees opened the premises it was discovered that a burglary had been effected and 100,000 pounds of metal had been stolen. Defendant Wells Fargo established that the signal it received did not indicate the location of the break other than that it was in the area served by the telephone wire. This area covered a substantial part of Brooklyn, and in it defendant had several subscribers, the exact number being in some doubt but being in excess of 10. The defendant further claimed that the police would not act on the indefinite information it had received.
On these facts Trial Term dismissed the complaint. Dismissal was based on the ground that had Wells Fargo notified the police and the subscribers in the area there was no proof that the burglary would have been prevented. There is authority for this ruling (Silberblatt ,v. Brooklyn Tel. & Messenger Go., 150 App.. Div. 268). However, we believe that this case should be restricted to its peculiar facts. While it is quite true that the burglary, rather than the failure to give notice, was the proximate cause of the loss, the service that the defendant contracted to perform was designed to prevent a burglary or minimize the consequences. If no consequence were to result from a complete breach, the benefits that a subscriber would have would be completely illusory.
We perceive two questions of fact. The first is, was there a breach of this contract by Wells Fargo. The answer depends on whether the signal received was one which might indicate illegal entry. If so, there was a positive duty to inform the police and the plaintiff. Secondly, there is the question of whether, had the defendant informed both the police and the plaintiff, would this fact have prevented any loss. Several factors enter into the determination of this question — especially the length of time it would reasonably be expected that a burglary of this extent would take and the steps that could have been taken to nullify its effect.
We find no grounds for imposing liability on the defendant New York Telephone 'Company. This defendant made no agreement with the plaintiff in regard to the line involved, and its agreement with the codefendant imposed no duty that was breached. As to it, we laffirm the dismissal, with costs.
*493Lastly, the contract between the parties contained a clause limiting defendant’s liability in case of breach. This is a matter of defense, and the effect of this clause is therefore not before us at this time. The question was, however, ¡briefed and argued before us and we can see no reason why the clause should not be given effect (Ciofalo v. Vic Tanney Gyms, 10 N Y 2d 294).
The judgment entered June 28, 1973, in New York County (Greenfield, J.) should be modified on the law to reverse the dismissal of the complaint as against Wells Fargo Alarm Services and a new trial ordered as against that defendant, with costs to abide the event, and as so modified affirmed.