
    Henry C. Smith, Jr., Appellant, v. George S. Ward, Respondent.
    Supreme Court, Appellate Term, First Department,
    June 15, 1925.
    Trial — stay — action by assignee of foreign corporation for balance of purchase price of window — order staying plaintiff from bringing on action for trial for sixty days unless defendant effects service of answer upon assignor or assignor submits to jurisdiction of court is unwarranted— counterclaim for damages suffered by reason of defect in work dismissed.
    An order staying the plaintiff, the assignee of a foreign corporation, in an action under a written contract for the balance of the purchase price of a stained glass window, from moving said action for trial for sixty days after service of the order, unless the defendant effects service upon plaintiff’s assignor of a copy of the answer containing a counterclaim to said action or said assignor submits to the jurisdiction of the court and accepts service of the answer is unwarranted and should be reversed.
    Moreover, defendant’s counterclaim, alleging defective work and seeking damages, in the absence of any allegation that the defendant was willing to pay the balance of the purchase price or that the contract had been rescinded, should be dismissed, with leave to serve an amended answer.
    Appeals by plaintiff from an order staying proceedings on his part and from an order denying plaintiff’s motion to dismiss counterclaim.
    
      Carter, Ledyard & Milburn [Sidney Wetmore Davidson and Louis F. Sperry of counsel], for the appellant.
    
      Rabenold & Scribner [Harold Wisan of counsel], for the respondent.
   Per Curiam:

Plaintiff is the assignee of a Pennsylvania corporation which agreed with defendant to install a stained glass window in conformity with the written agreement between the parties. The price agreed upon was $3,500 of which defendant has paid $1,750. The Pennsylvania corporation assigned to plaintiff its claim for the balance of the purchase price. The first order appealed from stays all proceedings on the part of the plaintiff to bring the action for trial for sixty days after service of the order unless the defendant meanwhile succeeds in serving plaintiff’s assignor (presumably with a copy of the answer containing a counterclaim) or unless said assignor submits to the jurisdiction of the court and accepts service of such answer. It also provides that if such service is not made within such sixty days the defendant may apply for a further stay. There is no warrant whatsoever for such an order and the same must, therefore, be reversed, with ten dollars costs.

The other order appealed from denies plaintiff’s motion to dismiss the counterclaim. The latter consists of allegations to the effect that the installation of the window contracted for was defective and asks damages in the sum of $1,750. There being no allegation that the defendant was ready and willing to perform his part of the agreement, namely, to pay the balance of the purchase price, and the counterclaim being plainly not based on rescission, this order must also be reversed, with ten dollars costs and disbursements, and the counterclaim dismissed, with ten dollars costs, with leave to defendant to serve an amended answer within six days after service of the order entered hereon upon payment of said costs.

All concur; present, Bijur, Mullan and Prosicauer, JJ.  