Philip W. Wrenn and Others, General Partners, and George L. Wrenn, Limited Partner, Comprising the Limited Copartnership Doing Business under the Firm Name and Style of Wrenn Bros. & Co., Respondents, Appellants, v. Julius Moskin, Appellant, Respondent, Impleaded with Henry M. Brooks, Defendant

Philip W. Wrenn and Others, General Partners, and George L. Wrenn, Limited Partner, Comprising the Limited Copartnership Doing Business under the Firm Name and Style of Wrenn Bros. & Co., Respondents, Appellants, v. Julius Moskin, Appellant, Respondent, Impleaded with Henry M. Brooks, Defendant. First Department, July 15, 1932. Stanhope Foster, for the motion Benjamin M. Kaye, opposed. [MAJORITY — Per Curiam.] 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. The 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.