Parver v. Matthews-Kadetsky Co.

Per Curiam.

The plaintiff appealed from the order setting aside the jury’s verdict in plaintiff’s favor on the first and third causes of action. That order made no disposition whatever of: (1) The verdict in defendant’s favor on the seventh cause of action; (2) the verdict in plaintiff’s favor on the fifth cause of action; (3) the dismissal by the court of the second, fourth and sixth causes of action on quantum meruit, and (4) the court’s refusal to direct a verdict for defendant. No appeal was taken by plaintiff from the dismissal of the second, fourth and sixth causes of action, nor has any cross-appeal been taken by defendant from the court’s refusal to direct a verdict in defendant’s favor on the first and third causes of action. No motions whatever were made by either party and no appeal was taken with regard to the verdict (1) in plaintiff’s favor on the fifth cause of action (in the small sum admitted to be due by defendant) and (2) in defendant’s favor on the seventh cause of action. No judgment has been entered.

In that state of the record, while we consider that the documentary proof so established the defense of accord and satisfaction that the trial court would have been justified in directing a verdict for defendant on defendant’s motion at close of trial, as this was not done by the trial court and there is no cross-appeal, and as the verdict on the first and third causes of action was properly set aside as against the overwhelming weight of the evidence, we can now only affirm this order setting aside the verdict and directing a new trial which must be on all litigated issues.

The order setting aside the verdict and directing a new trial and restoring the case to the ready jury calendar for trial should be affirmed, with costs.

Martin, P. J., McAvoy, Dore and Cohn, JJ., concur; O’Malley, J., concurs in result.

Order unanimously affirmed, with costs and disbursements.