
    Alfred Kaplan, Doing Business as K & K Motor Sales, Respondent, v. Aaron L. Batterman, Appellant.
   Appeals by the defendant, consolidated by order of this court on September 10, 1973, from orders of the Supreme Court, entered in Sullivan County, and a judgment in favor of plaintiff. The judgment appealed from was entered upon an order of the court at Trial Term which took the case from the jury and directed a verdict in favor of {he plaintiff on his three causes of action and dismissed the defendant’s counterclaim, said judgment having been entered on April 24, 1973. The remaining orders appealed from denied the defendant’s application to set aside the judgment or, in the alternative, grant a new trial. The defendant’s contentions upon this appeal in regard to the direction of a verdict in favor of the plaintiff upon his causes of action are without substantial merit. However, it is apparent from the arguments made by the parties at the close of the evidence and from the decision of the trial court rendered from the bench that the factual and legal issues in regard to the defendant’s counterclaim were not considered at the time the verdict was directed. The record contains probative evidence from which it could be found that the plaintiff was not entitled to retain the sum of money claimed by the defendant. Orders and judgment modified, on the law and the facts, by deleting so much of the judgment as dismissed the defendant’s counterclaim and by directing a new trial upon the said counterclaim, and, as so modified, affirmed, without costs. Herlihy, P. J., Greenblott, Cooke, Kane and Main, JJ., concur.  