
    Two Park Avenue Company, Appellant, v. Intermediate Factors Corporation, Respondent, et al., Undertenants.
    Supreme Court, Appellate Term, First Department,
    November 26, 1958.
    
      
      Demov & Morris (Eugene J. Morris, Matthew J. Bomber and Robert B. Levin of counsel), for appellant.
    
      Gerald Orseck, Robert Orseck and Sidney Orseck for respondent.
   Per Curiam.

Appeal No. 47. The landlord’s affirmative case was admitted. There was no constructive eviction because the tenant did not quit the premises. There was no partial eviction because there was no deprivation of a substantial portion of the demised premises. The counterclaim for damages to tenant’s property is inadequately pleaded and the instructions to the jury did not make this phase of the case clear and were so bound up with issues that should not have been presented at all that the findings of the jury cannot be • considered as a determination of the facts. The counterclaim is dismissed without prejudice to a separate action for this relief or to pleading it as a counterclaim in the second action between the parties.

Appeal No. 45. While the granting of summary judgment might have been proper had the prior judgment been entered after a proper disposition, in view of the decision on the companion appeal herein this order cannot stand.

The final order and judgment in Appeal No. 47 should be reversed, with $30 costs, and final order directed for landlord as prayed for in the petition, with costs. Counterclaim dismissed without prejudice.

The final order and judgment in Appeal No. 45 should be reversed, and motion for summary judgment denied, without costs.

Concur — Hecht, J. P., Steuer and Tilzer, JJ.

Final order (Appeal No. 47) reversed, etc.

Final order (Appeal No. 45) reversed, etc.  