
    Richard Cronin et al., Resp’ts, v. William M. Tebo, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 8, 1892.)
    
    1. Severance—Code Crv. Pro., § 511.
    Section 511 of. the Code, allowing a severance where the answer admits, expressly or by not denying, a part of plaintiff’s claim to be just, applies only to a case where the answer taken in its entirety admits that a part of the claim is just and should be enforced and collected without waiting the result of litigation.
    3. Same.
    Where the answer sets up a counterclaim sufficient to extinguish the entire claim contained in both causes of action specified, there is no such admission and a severance should be denied.
    , Appeal from judgment in favor of plaintiffs and from order granting motion to sever the action' and ordering judgment upon :the second cause of action.
    
      Josiah T. Marean, for app’lt;. James C. Church, for resp’ts.
   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 counterclaim 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 plaintiff served a reply denying the counterclaim, and then moved the court at special term for an order severing the action, and permitting the plaintiff to enter judgment for the sum claimed in the second cause of action which was not denied, and continue 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 § 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 counterclaim sufficient to extinguish the entire claim of the plaintiff contained in both causes of action specified, and that claim is certainly incompatible with an admission that the plaintiff has a just claim against him. Contrariwise it is quite the reverse. It is equivalent to a declaration-that he owes the plaintiff nothing, that the plaintiff has no just, claim which should be enforced against him because he has a counterclaim which will extinguish all the demands set up in the-complaint. . ,

If this section is to receive the construction for which the respondent contends, 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 counterclaim 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 counterclaim and thus extinguish the demands of the plaintiff, instead of paying the judgment for the portion of the uncontroverted claim and abiding his chances of collecting the judgment he may obtain against the plaintiff.

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 len dollars costs.

Barnard, P. J., and Pratt, J., concur.  