Opinion
May 21, 1951.
In this action for work, labor and services, judgment has been entered, after trial by the court without a jury, in favor of plaintiffs upon their alleged cause of action on a finding by the court that the defense thereto of accord and satisfaction was not established; and an order has been made severing defendant's counterclaim and directing its separate trial. Upon defendant's appeal from the judgment and the order of severance, the judgment and order are reversed upon the law and the facts, the motion for a severance denied, and a new trial granted, with costs to appellant to abide the event. It is our opinion that the matters alleged in the counterclaim are directly connected with the cause of action alleged in the complaint and a separate trial thereof cannot be had without prejudice to a substantial right of defendant. (See Dietz v. Glynne, 221 App. Div. 329; Aetna Life Ins. Co. v. National Dry Dock Repair Co., 230 App. Div. 486. ) All the pleaded issues between the parties are involved in one continuous transaction and should be litigated in one action. We do not pass upon the sufficiency of the proof adduced to establish the defense of accord and satisfaction. Johnston, Acting P.J., Adel, Sneed and MacCrate, JJ., concur; Wenzel, J., concurs for reversal of the judgment and order but dissents as to the granting of a new trial and votes to dismiss the complaint on the ground that the trial established an accord and satisfaction between the parties which extinguished plaintiffs' claim. [See post, p. 1006.]