Bata v. National Surety Corp. , 108 N.Y.S.2d 737 ( 1951 )

Per Curiam.

To determine whether $100,000 involved in defendant’s counterclaim was received for “ the use and benefit ” of defendant’s assignors, would require determination of issues already raised between plaintiff and defendant’s assignors in many other actions now pending between such parties. This would unduly delay and prejudice plaintiff seeking recovery against defendant’s surety under section 835 of the Civil Practice Act. Accordingly in the discretion of the court as provided by section 262 of the Civil Practice Act the order appealed from should be reversed, with $20 costs and disbursements to plaintiff, and plaintiff’s motion granted to the extent of: (1) ordering a severance and separate trial of the counterclaim; and (2) directing assessment of plaintiff’s damages, since (with the counterclaim severed) the remaining denials in the answer raise no triable issue.

Settle order.

Glennon, J. P., Dore, Yan Yoorhis and Shientag, JJ., concur.

Order unanimously reversed, with $20 costs and disbursements to appellant, and plaintiff’s motion granted to the extent set forth in the opinion herein. Settle order on notice.