
    Robert W. Mezan, Respondent, v. D. B. J. Land & Development Corp. et al., Appellants.
   .In an action to.recover on a promissory nóte; defendants appeal from. (-1) an order of the Supreme Court, Nassau Countyy dated .Sep- .' tember' 6, 1972,-;which " (a) .granted plaintiff’s motion Tor' summary judgment' . to'-'the extent of-.awarding him $20,0Ó0-. against the corporate defendant and. $4,000 against each of the four individual .defendants, with - interest, and" (b) / severed the counterclaims contained in .the- amended answer, and thé" reply -• .theretoj for trial; and (2) a judgment of the .same court'entered September 11* .1972 .pursuant tó said'order. Judgment reversed, on'the'law;, and order modi-.. -fled, oh.the- law,; by adding thereto a provision that plaintiff’s total recovery, is.' limited to $20,000, with, interest, costs and disbursements, .and:that entry;of judgment shall be stayed pending determination of -the issues raised' in the' counterclaim's. As so modified, order affirmed; Plaintiff is awarded one bill"-' of $20 costs -and disbursements to cover both 'appeals. Since .the. counterclaims allege, inter alla, that the inability-.of the corporate' defendant to pay its obligation is the result, of plaintiff’s. withholding from it-.payment óf a $30,000 indebtedness, plaintiff, should, not be allowed to enter a judgment, until-.these issues are resolved (Nopeo Chepi. Co. v. Milner, .12 A D 2d. 942), Further,, the limitation on the amount of' the. recovery' is. designed to avoid, the'possibility .of a; duplication of recovery. Hopkins, Acting P.- J.,' Munder, Latham, Gulotta and Benjamin,-JJ., concur. •  