Clark v. Dodge
242 A.D. 728
| N.Y. App. Div. | 1934|
Check Treatment— Order reversed on the law, with ten dollars costs and disbursements, and motion granted in so far as it seeks a dismissal of the complaint, without costs. In so far as the motion seeks a severance of the action and a trial of the issues arising on the defendants’ counterclaim and the plaintiff’s reply, the motion is denied, without costs, the court being of opinion that the contract sued upon is illegal {McQuade v. Stoneham, 263 N. Y. 323); and as the counterclaim is based upon the terms of that contract it, too, fails of a right of action. Lazansky, P. J., Kapper, Carswell and Davis, JJ., concur; Young J., dissents.