
    Julius M. F. Conrad, Respondent, v. Brilhart Plastics Corporation, Appellant.
   In an action to recover four unpaid installments of compensation for the months of February, March, April and May, 1960, claimed to be due under a written contract of employment between plaintiff and the defendant corporation, in which the corporation, claiming that the contract is void and unenforcible, asserted counterclaims to recover $18,750 theretofore paid to plaintiff under the contract, the corporation appeals: (1) from an order of the County Court, Nassau County, dated September 6, 1960, which granted plaintiff’s motion, pursuant to rule 113 of the Rules of Civil Practice, for summary judgment dismissing the counterclaims and for partial summary judgment on the complaint with respect to the first three unpaid installments; which severed the action as to the fourth or last installment; and which denied the corporation’s cross motion for summary judgment on its counterclaims and for summary judgment dismissing the complaint; and (2) from the judgment of said court, dated September 7, 1960, entered upon said order. Order modified as follows: (1) by striking out the second, third and fourth decretal paragraphs which grant plaintiff’s motion for summary judgment dismissing the counterclaims and for partial summary judgment on the complaint, which sever the action and which direct the entry of judgment accordingly; and (2) by substituting therefor a paragraph denying plaintiff’s motion in toto. As so modified, the order is affirmed, with $10 costs and disbursements to the corporation. Judgment reversed, without costs. In our opinion, this record presents issues of fact which should be resolved after a plenary trial. Hence, neither party is entitled to summary judgment. Ughetta, Acting P. J., Kleinfeld, Christ, Pette and Brennan, JJ., concur.  