Texilon Co. v. Kaiserman

Appellate Division of the Supreme Court of New York

Texilon Co. v. Kaiserman

3 A.D.2d 743, 160 N.Y.S.2d 556, 1957 N.Y. App. Div. LEXIS 6034

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 26, 1957

StatusPublished

This text of 3 A.D.2d 743 (Texilon Co. v. Kaiserman) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Texilon Co. v. Kaiserman, 3 A.D.2d 743, 160 N.Y.S.2d 556, 1957 N.Y. App. Div. LEXIS 6034 (N.Y. Ct. App. 1957).

Pincite

Opinion

—There is not sufficient identity of the issues in the three actions here involved to warrant consolidation for the purposes of trial. The claims asserted by Texilon against its suppliers for defective elastic, in Actions Nos. 1 and 3, do not “grow out of the same set of facts” as the breaches alleged against it by its customer Sweetheart in Action No. 2 (Civ. Prac. Act, § 96-a). Texilon’s claims against its suppliers, limited as they are to alleged breaches of warranty as to the quality [744]*744of the elastic supplied it, cannot be equated with the numerous -breaches alleged by Sweetheart — namely, failure ' to manufacture baby pants according to written specifications, nonconformity with the manufactured sample, improper sizes, and failure to make deliveries as called for. Even if all the claims arose out of the same defects, the warranties made by each of the parties differed. While it was proper to consolidate for trial the action by Kaybro’s assignee with the action by Texilon against Kaybro, Kaybro’s cross motion for a severance of the action against it and Bliss should have ■ been granted. Kaybro and Bliss each supplied different material, as to which different warranties were applicable.. Texilon claims the breach of oral warranties by Kaybro and the breach of warranties of sample by Bliss. Order unanimously modified by striking therefrom the direction consolidating Action No. 2 with Actions Nos. 1 and 3, and by granting the cross motion for severance of the action by Texilon Company, Tnc., against Kaybro and Bliss and, as so modified, affirmed. Settle order on notice. Concur — Breitel, J. P., Botein, Rabin, Valente and McNally, JJ.

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—There is not sufficient identity of the issues in the three actions here involved to warrant consolidation for the purposes of trial. The claims asserted by Texilon against its suppliers for defective elastic, in Actions Nos. 1 and 3, do not “grow out of the same set of facts” as the breaches alleged against it by its customer Sweetheart in Action No. 2 (Civ. Prac. Act, § 96-a). Texilon’s claims against its suppliers, limited as they are to alleged breaches of warranty as to the quality [744]*744of the elastic supplied it, cannot be equated with the numerous -breaches alleged by Sweetheart — namely, failure ' to manufacture baby pants according to written specifications, nonconformity with the manufactured sample, improper sizes, and failure to make deliveries as called for. Even if all the claims arose out of the same defects, the warranties made by each of the parties differed. While it was proper to consolidate for trial the action by Kaybro’s assignee with the action by Texilon against Kaybro, Kaybro’s cross motion for a severance of the action against it and Bliss should have ■ been granted. Kaybro and Bliss each supplied different material, as to which different warranties were applicable.. Texilon claims the breach of oral warranties by Kaybro and the breach of warranties of sample by Bliss. Order unanimously modified by striking therefrom the direction consolidating Action No. 2 with Actions Nos. 1 and 3, and by granting the cross motion for severance of the action by Texilon Company, Tnc., against Kaybro and Bliss and, as so modified, affirmed. Settle order on notice. Concur — Breitel, J. P., Botein, Rabin, Valente and McNally, JJ.

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Bluebook (online)

3 A.D.2d 743, 160 N.Y.S.2d 556, 1957 N.Y. App. Div. LEXIS 6034, Counsel Stack Legal Research, https://law.counselstack.com/opinion/texilon-co-v-kaiserman-nyappdiv-1957.