Wrenn v. Moskin
236 A.D. 226
N.Y. App. Div.
1932
Check Treatment
Per Curiam.

This is a motion for reargument upon the ground that the court has the right to sever the action and permit the plaintiffs to enter judgment for $204,875.11, with interest, or for the sum admittedly proved.

Upon the first appeal (226 App. Div. 563) this court reversed a judgment which had been directed in favor of the plaintiffs for $233,810.16, and directed a retrial, holding that there was a question of fact to be disposed of by the jury with reference to the counterclaim.

At the second trial the court directed a verdict for the plaintiffs for the sum of $204,875.11, with interest, and directed a verdict for the defendant on his counterclaim for $110,964.30. The direction of a verdict on the counterclaim cannot be sustained on the record.

The question now before the court is whether the action can be severed and a judgment allowed for the plaintiffs for the difference between the counterclaim and the verdict that was directed for the plaintiffs.

*227The only question here for decision is whether the verdict should be for $204,875.11 or for that amount less the counterclaim of $110,964.30. Irrespective of the final outcome of the litigation on the counterclaim, the plaintiffs are entitled to a judgment for the difference between the amount of the counterclaim and $204,875.11, leaving the counterclaim to be litigated on the new trial.

Under the circumstances, the motion for a reargument should be granted and an order made severing the action and permitting judgment for plaintiffs for the sum of $93,910.81, with interest.

Present — Finch, P. J., Merrell, McAvoy, Martin and Sherman, JJ.

Motion for reargument granted and upon reargument the action severed and judgment directed for plaintiffs for the sum of $93,910.81, with interest. Settle order on notice.