Norton v. Fello , 23 Misc. 2d 924 ( 1960 )

Per Curiam.

The theory of the action, as pleaded, was breach of warranty. The determination made below was based solely upon negligence. A new trial is required since the issues presented in the breach of warranty action were not considered or passed upon.

The judgment should be unanimously reversed upon the law and facts and a new trial ordered, with costs to defendants to abide the event.

Concur — Hart, Di Giovanna and Brown, JJ.

Judgment reversed, etc.