Richmond Construction Corp. v. Wilmar Realty Corp. , 82 N.Y.S.2d 865 ( 1948 )

In an action to recover sums of money on contracts for work which was duly performed, to which a counterclaim for damages for unskillful and negligent performance was interposed, order, insofar as appealed from, modified on the law and the facts as follows: (a) by adding to the first ordering paragraph, after the word “denied”, the words “without prejudice to proceeding pursuant to section 193-a of the Civil Practice Act; ” (b) by striking out the second ordering paragraph; (e) by striking out the words “as the balance thereof” in the third ordering paragraph; and (d) by including items “ 3 ” and “ 4 ” in the fourth ordering paragraph. As so modified, the order is affirmed, without costs. There is no necessity for an order directing the desired person to be brought in as a party defendant by plaintiff. The subject of payments by defendant is a proper one for examination before trial. There is no showing by plaintiff that its alleged president is no longer connected with it. Carswell, Acting P. J., Johnston, Adel, Nolan and Sneed, JJ., concur.