Crawford v. Spadone

147 N.Y.S. 344

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 7, 1914
• Status: Published

Opinion

PAGE, J.

The issues were brought to trial upon the complaint, an answer containing a separate defense, and also a counterclaim and a reply thereto. Upon the trial the justice dismissed the complaint and submitted the counterclaim to the jury. They disagreed. An order was thereupon entered dismissing the complaint “without prejudice to the merits of the plaintiffs’ cause of action upon another trial of the same.” A motion was thereupon made for an order vacating and setting aside the direction of the court dismissing the complaint, and for a new trial on the exceptions to the dismissal of the complaint, which motion was denied, and the plaintiffs appeal from both orders.

No judgment has been entered, and none could be, as the issues raised by the counterclaim and reply were not adjudicated. There is no authority for the severance of causes of action under such circumstances and the entry of judgment. Had the defendant waived her counterclaim, judgment could have been entered dismissing the complaint. Then the defendant could have brought her action upon the cause of action set forth herein as a counterclaim. The order from which the appeal is taken is entirely unauthorized, although it purports to be without prejudice to the consideration of .the plaintiffs’ cause of action upon another trial. The subsequent order, refusing to set aside the order and grant a new trial, complicates the situation.

The orders will therefore be reversed, and a new trial granted, in order that all the issues arising upon the complaint and the counterclaim may again be tried, with costs to appellants to abide the event. All concur.