
    United Artists Corporation, Appellant, v. William L. Phelps, Defendant, Impleaded with Bellevue Theatre Corporation, Respondent.
    Fourth Department,
    March 27, 1929.
    
      Donnelly, O’ Neil & Lindal [Leo F. Donnelly of counsel], for the appellant.
    
      John O. Chapin [Frank Gibbons of counsel], for the respondent.
   Per Curiam.

No substantial error has been found in the record except in respect to the fourth counterclaim set forth in the answer of the defendant Bellevue Theatre Corporation. As to the cause of action alleged by the defendant in that counterclaim, the record is bare of proof that the gross receipts at the defendant’s theatre for the seven days during which the picture Tess of the Storm Country ” was shown fell below the requisite amount of $3,000 so as to entitle the defendant to recover. The proof is that the receipts for five of the seven days amounted to $2,549.43. No proof was offered as to the receipts on the other two days. A verdict on that cause of action was, therefore, erroneously directed in favor of the defendant. If the exception to the direction was not sufficient to raise this point as matter of law, the direction constituted error of fact. Further, the direction was erroneous because, in view of the terms of the contract dated March 9, 1923, in respect to the showing of this picture, there was an absence of proof of authority on the part of the plaintiff’s sales agent, Saunders, to modify this contract as done in Saunders’ letter of March sixth to the defendant. Exception was duly taken to the direction of a verdict on this ground.

The error as to the direction of a verdict on the fourth counterclaim does not necessitate a new trial as to the other matters involved in this action as the fourth counterclaim is entirely separate and distinct, both from the matters alleged in the complaint, and the matters otherwise set forth in the answer. (Gross & Son v. State of New York, 214 App. Div. 386; 243 N. Y. 629.)

The judgment and order should be modified on the law and facts by reducing the recovery in favor of the defendant and against the plaintiff to $251 damages and $112.27 costs, in all amounting to $363.27, and as modified, affirmed, without costs, and the action severed and a new trial granted as to the fourth counterclaim only, without costs.

All concur. Present — Sears, P. J., Taylor, Edgcomb, Thompson and Crosby, JJ.

Judgment and order modified on the law and facts by reducing the recovery in favor of the defendant and against the plaintiff to $251 damages and $112.27 costs, in all amounting to $363.27, and as so modified the judgment and order are affirmed, without costs of this appeal to either party. The action is severed and a new trial granted as to the fourth counterclaim only, without costs of this appeal to either party.  