Opinion
November 18, 1938.
Appeal from Supreme Court of New York County.
Benj. M. Kaye of counsel [ Herbert Rand with him on the brief; Kaye, Scholer, Fierman Hays, attorneys], for the appellant.
Lionel S. Popkin of counsel [ Abraham S. Guterman with him on the brief; Riegelman, Hess, Strasser Hirsch, attorneys], for the respondent.
Present — MARTIN, P.J., TOWNLEY, UNTERMYER, COHN and CALLAHAN, JJ.
Order unanimously reversed and the motion denied.
The complaint contained two causes of action, under which plaintiff demanded $5,000, and $2,000 damages, respectively, based on alleged breaches of a written separation agreement.
Defendant's amended answer contained denials, an affirmative defense and three counterclaims.
The first counterclaim was for reformation of the separation agreement; the second and third sought to recover alleged overpayments thereunder.
The notice of motion asked the court to strike from the defendant's amended answer the denials relating to plaintiff's first cause of action; to sever the first cause of action from the second, and for summary judgment on the first cause of action.
The amounts demanded in the second and third counterclaims were in excess of the sums demanded in the complaint. These counterclaims were in no way attacked. The order appealed from permits them to stand, but grants summary judgment on plaintiff's first cause of action, with a direction for a stay until the disposition of the remaining issues in the case. It is improper to grant summary judgment where valid counterclaims are pleaded for sums exceeding the damages demanded by plaintiff. (See AEtna Life Insurance Co. v. National Dry Dock Repair Co., Inc., 230 App. Div. 486.) Further, as the notice of motion did not seek any such relief, it was improper to strike out either the separate defense or the first counterclaim as insufficient in law on the face thereof. In so ruling, we are not passing upon the sufficiency of these parts of the answer, nor are we determining the question raised concerning the construction of the separation agreement.
The order should be reversed and the motion denied.