Opinion
December, 1935.
Present — Young, Hagarty, Carswell and Johnston, JJ.; Lazansky, P.J., not voting.
Order modified by striking out the provisions limiting the issues to be determined on the new trial, and, as so modified, unanimously affirmed, without costs. On the trial the court granted defendants' motion to dismiss the complaint as to any cause of action prior to October 1, 1931, denied the motion to dismiss as to the balance of the claim, and submitted to the jury the question of the reasonable value of the services performed after October 1, 1931. The court erred in dismissing the complaint in part, and the error was perpetuated by the limitation contained in the order. Instead of dismissing the complaint as to the issues prior to October first, the court should have instructed the jury that no recovery could be had for that period. A part of a cause of action may not be dismissed where that part is an incomplete fragment of the entire claim. ( Lowe v. Lowe, 265 N.Y. 197, 202.) The appeal from the order denying resettlement of the order setting aside the verdict is dismissed as unnecessary.