17 N.Y.S. 650 | N.Y. Sup. Ct. | 1892
The complaint in this action set up two causes of action. The answer denied the first cause of action, and set up a counter-claim sufficient to defeat both causes of action, as we understand the pleadings; but the complaint is quite indefinite as to the amount claimed under the first cause of action. The plaintiffs served a reply, denying the counter-claim, and then moved the court at special term for an order severing the action, and permitting the plaintiffs to enter judgment for the sum claimed in the second cause of action, which was not denied, and continued the action as if it had been brought originally for the remainder of the claim. That motion was granted, and the judgment was entered accordingly, and the defendant has appealed from the judgment and from the order. The motion was made and •granted under section 511 of the Code of Civil Procedure, which is as follows, so far as it affects this appeal: “Where the answer of the defendant, expressly or by not denying, admits a part of the plaintiff’s claim to be just, the court, upon the plaintiff’s motion, may, in its discretion, order that the action be severed; that a judgment be entered for the plaintiff for the part so admitted; and, if the plaintiff so elects, that the action be continued, with like effect, as to the subsequent proceedings, as if it had been originally brought for the remainder of the claim.” It will be seen that the language of the statute is very guarded: “Where the answer of the defendant, expressly or by not denying, admits a part of the plaintiff’s claim to be just, the court * * * may, in its discretion, order that the action be severed.” The section should be construed so as to apply only to a case where the answer of the defendant, taken in its entirety, admits that a part of the plaintiff’s claim is just, and should be enforced and collected without waiting the result of litigation. This view is strengthened by the discretion which is vested in the court. The language is: “The court * * * may, in its discretion, order that the action be severed.” Such discretion was given to enable the court to examine the whole answer, and see whether, on a broad view of all its allegations, and all the defenses it set up, it admitted any part of the plaintiff’s claim to be just, and such as should be summarily enforced. In this case the answer sets up a counter-claim sufficient to extinguish the entire claim of the plaintiffs contained in both causes of action specified, and that claim is certainly in
All concur.
