Marshall, Bratter, Greene, Allison & Tucker v. Knight

52 A.D.2d 547, 382 N.Y.S.2d 310, 1976 N.Y. App. Div. LEXIS 12096

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 13, 1976
• Status: Published

Opinion

Order entered October 3, 1975, in the Supreme Court, New York County, which denied plaintiff’s motion for partial summary judgment, unanimously affirmed, without costs and without disbursements. In this action for attorneys’ fees and disbursements, the verified complaint contains two causes of action, each seeking recovery in the amount of $93,010.56, the balance claimed due for services rendered. After joinder of issue by verified answer which contained six counterclaims —several of which were subsequently dismissed—plaintiff moved for partial summary judgment in the amount of $58,924.14, on the theory of an account stated, for services allegedly rendered between July 1, 1973 and January 31, 1974, on which a percentage of payment was deferred by agreement. We affirm the denial of partial summary judgment. From the bills rendered, including the latest dated July 24, 1974, there is obviously a substantial amount allegedly due representing the difference between the sum sought as an account stated and the total demanded in the complaint. Concededly, $286,868.10 has been paid to plaintiff, which plaintiff asserts was for services rendered between April, 1972 and June, 1974. Unless the parties adjust or compromise their differences, a trial must be held at least as to the amount representing the difference between $58,924.14 and $93,010.56. Since the single question is the extent of defendants’ obligation to plaintiff, no good reason appears why the issue should be fragmented. A single trial should suffice. Concur—Stevens, P. J., Kupferman, Murphy, Birns and Silverman, JJ.