
    Cronin et al. v. Tebo.
    
      (Supreme Court, General Term, Second Department.
    
    February 8, 1892.)
    Judgment by Confession—Denying One Cause of Action—Counter-Claim.
    Code Civil Proc. § oil, provides that “where the answer of the defendant, expressly or by not denying, admits a part of the plaintiff’s claim to be just, the court may, in its discretion, order that the action be severed and judgment entered for the part admitted, ” applies only to a case where the answer, taken in its entirety, admits a part of plaintiff’s claim, and has no application where defendant in his answer denied one of two causes of action, and set up a counter-claim sufficient to defeat both.
    Appeal from special term, Kings county.
    Action by Richard Cronin and others against William M. Tebo. From an order severing the causes of action, and permitting plaintiffs to enter judgment for the sum claimed in one, defendant appeals.
    Reversed.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      Josiah T. Marean, for appellant. James C. Church, for respondents.
   Dykman, J.

The complaint in this action set up two causes of action. The answer denied the first cause of action, and set up a counter-claim sufficient to defeat both causes of action, as we understand the pleadings; but the complaint is quite indefinite as to the amount claimed under the first cause of action. The plaintiffs served a reply, denying the counter-claim, and then moved the court at special term for an order severing the action, and permitting the plaintiffs to enter judgment for the sum claimed in the second cause of action, which was not denied, and continued the action as if it had been brought originally for the remainder of the claim. That motion was granted, and the judgment was entered accordingly, and the defendant has appealed from the judgment and from the order. The motion was made and •granted under section 511 of the Code of Civil Procedure, which is as follows, so far as it affects this appeal: “Where the answer of the defendant, expressly or by not denying, admits a part of the plaintiff’s claim to be just, the court, upon the plaintiff’s motion, may, in its discretion, order that the action be severed; that a judgment be entered for the plaintiff for the part so admitted; and, if the plaintiff so elects, that the action be continued, with like effect, as to the subsequent proceedings, as if it had been originally brought for the remainder of the claim.” It will be seen that the language of the statute is very guarded: “Where the answer of the defendant, expressly or by not denying, admits a part of the plaintiff’s claim to be just, the court * * * may, in its discretion, order that the action be severed.” The section should be construed so as to apply only to a case where the answer of the defendant, taken in its entirety, admits that a part of the plaintiff’s claim is just, and should be enforced and collected without waiting the result of litigation. This view is strengthened by the discretion which is vested in the court. The language is: “The court * * * may, in its discretion, order that the action be severed.” Such discretion was given to enable the court to examine the whole answer, and see whether, on a broad view of all its allegations, and all the defenses it set up, it admitted any part of the plaintiff’s claim to be just, and such as should be summarily enforced. In this case the answer sets up a counter-claim sufficient to extinguish the entire claim of the plaintiffs contained in both causes of action specified, and that claim is certainly incompatible with an admission that the plaintiffs have a just claim against him. Contrariwise, it is quite the reverse. It is equivalent to a declaration that he owes the plaintiffs nothing; that the plaintiffs have no just claim which should be enforced against him, because he has a counter-claim which will extinguish all the demands set up in the complaint. If this section is to receive the construction for which the respondents contend, it may operate very unjustly. An insolvent plaintiff may obtain and collect a judgment for a portion of his demand, and, if the defendant establishes his counter-claim and obtains a judgment, he would be unable to collect the same from the plaintiff by reason of his insolvency. It is inconceivable that the legislature ever intended such a result, and we cannot permit a construction which will sanction such a consequence. Justice to this defendant demands for him an opportunity to establish his counter-claim, and thus extinguish the demands of the plaintiffs, instead of paying the judgment for the portion of the u.n-controverted claim, and abiding his chances of collecting the judgment he may obtain against the plaintiffs. Even the circuity of such practice is sufficient to induce the court to hold all the claims set up in the pleading to abide the result of a trial and final judgment. The judgment and order appealed from should both be reversed, with costs of reversal of the judgment, but no costs for the order, and the motion should be denied, with $10 costs.

All concur.  