Opinion
May 8, 1942.
Appeal from Supreme Court of New York County, HOFSTADTER, J.
Arthur J. O'Leary of counsel [ Philip J. Dunn, attorney], for the appellant.
Charles S. Narins of counsel [ David Weinstein with him on the brief], for the respondent.
Present — MARTIN, P.J., TOWNLEY, GLENNON, DORE and CALLAHAN, JJ.
We find that it was improper to grant summary judgment on the second cause of action and to sever the plaintiff's first cause of action for the following reasons: (1) The sum for which the judgment was awarded was far in excess of the amount demanded in the complaint, and defendant was afforded no opportunity to plead with respect to the additional items for which judgment was allowed. (2) The letter of May 6, 1930, does not appear to set forth an account stated with respect to unmatured dividends, because the letter contains no agreement fixing a specific amount due on past transactions. (3) An award of damages under the second cause of action, including an item based on a stock dividend, might affect defendant's liability under the first cause of action, and the whole claim should be considered at one time.
The order granting plaintiff's motion for summary judgment on the second cause of action, and the judgment entered thereon, should be reversed, with costs, and the motion in all respects denied.
Judgment and order unanimously reversed, with costs, and the motion in all respects denied.