Opinion
August 13, 1959
Present — Bergan, J.P., Coon, Gibson, Herlihy and Reynolds, JJ.
Appeal from an order of the County Court of Albany County which denied plaintiff's motion for summary judgment in an action for building materials sold and delivered. The answer contains general denials but it is clear from the factual averments of the moving and answering affidavits that the only controversy is as to certain roof decking invoiced at $839.04 which plaintiff concedes was not delivered but asserts was ordered by defendant and "held by plaintiff for delivery at some future date." There appears to be a factual issue with respect to this alleged transaction and perhaps a question as to the measure of damages if the transaction shall be established upon the trial. Plaintiff should, however, have partial judgment under rule 114 of the Rules of Civil Practice for the amount not in dispute, i.e., $2,356.69, the amount claimed, less $839.04, claimed for merchandise not delivered, or $1,517.65 and interest. Order modified, on the law and the facts, and motion granted to the extent that plaintiff be awarded judgment for $1,517.65, with interest and costs, the action being severed accordingly, and as so modified, unanimously affirmed, without costs.