N. M. Obedin v. Tennyson Court, Inc.

23 A.D.2d 852, 259 N.Y.S.2d 184, 1965 N.Y. App. Div. LEXIS 4320

Opinion

In an action to recover a brokerage commission allegedly earned by the plaintiff, in which the defendant asserted a counterclaim to recover damages for alleged breach of contract, the defendant appeals from so much of an order of the Supreme Court, Nassau County, entered March 26, 1964 upon reargument, as: (1) granted plaintiff partial summary judgment and $25 costs; and (2) directed the entry of judgment accordingly in his favor. Order, insofar as appealed from, reversed, without costs, and plaintiff’s motion for summary judgment denied in all respects. Defendant’s counterclaim for plaintiff’s breach of the contract is in an amount far in excess of the sum sought to be recovered by the plaintiff in this action. The validity of this counterclaim is supported by proof sufficient to create issues of fact. Under these circumstances, plaintiff’s motion for summary judgment should be denied, even though the defendant concedes that the major part of the sum claimed by the plaintiff is owing to him (Illinois McGraw Elec. Co. v. John J. Walter, Inc., 7 N Y 2d 874, 876, 877; Hellmuth v. Brandin, 3 A D 2d 997; cf. Hopeo Ghem. Co. v. Milner, 12 A D 2d 942; Metal Specialty Prods. Corp. v. Howal-Bonset Instrument Co., 19' A D 2d 745). Beldock, P. J., Ughetta, Rabin, Hopkins and Benjamin, JJ., concur.