Opinion
February 10, 1975
In an action to foreclose a mechanic's lien, defendants appeal from an order of the Supreme Court, Westchester County, entered July 13, 1973, which, inter alia, (1) granted in part plaintiff's renewed motion for summary judgment, i.e., to the extent of $47,763.40 with interest thereon, (2) granted plaintiff foreclosure and sale, upon said award, and in form only, to apply against a certain lien discharge bond, and (3) severed the action so that the balance of plaintiff's lien claim may proceed to a plenary hearing or trial. Order reversed, and the action is remitted to Special Term for a trial on all the issues, with costs to abide the event. There are issues of fact to be tried. Gulotta, P J., Hopkins, Christ and Munder, JJ., concur; Cohalan, J., dissents and votes to affirm the grant of partial summary judgment and to sever the remainder of the action for trial.