#### James Carlew, Plaintiff-Respondent, *v.*Samuel A. McGuire, Defendant-Appellant.

(Supreme Court, Appellate Term,

December, 1910.)

New trial — Grounds — Rulings and instructions at trial — Submission of question to jury — Premature submission.

■Where the defendant has the affirmative and plaintiff moves for a direction of a verdict on the pleadings and on defendant’s opening and also for a dismissal of the counterclaim, it is improper practice for the court to direct a verdict for the plaintiff forthwith and reserve decision on the motion to dismiss the counterclaim.

This is an appeal from the judgment of a Trial Term of the City Court, entered upon a verdict by direction of tbe court, rendered at the close of the opening by the defendant, who took the affirmative, and prior to the decision of the court upon a motion made by the plaintiff to dismiss the counterclaim set tip in the answer of the defendant.

Flannagan & Erskine (Dallas Elannagan and C. R. Waterbury, of counsel), for appellant.

Ferriss, Roeser & Storck (Herman O. Storck, Henry A. Mark and Forman Wilmer Chandler, of counsel), for respondent.

Gavegan, J.

The action was brought to recover $1,000 and interest, alleged to be due upon a certain promissory note made by the defendant to the order of the plaintiff.

The answer of the defendant admits the amount due on the note, but sets up, by way of separate defense, a counterclaim of $100,000 damages for a breach of written contract.

At the trial it was conceded that the defendant had the affirmative, and his counsel opened the case by substantially repeating the allegations contained in the counterclaim.

Prior to the trial, and before the service of plaintiff’s *640reply, the defendant, upon demand, served upon the plaintiff a hill of particulars.

After the opening by defendant’s counsel, counsel for the plaintiff moved upon the pleading, and the bill of particulars and upon the opening, to dismiss the counterclaim set forth in the answér of the defendant and for a direction of a verdict for $1,000 as admitted in the answer, with interest. The court reserved its decision on the motion made by the plaintiff to dismiss the counterclaim, and by its direction the jury found a verdict for $1,031.80. This was on April 25, 1910. On June 16, 1910, the court rendered a decision dismissing the defendant’^ counterclaim, and directing that the plaintiff have judgment against defendant for $1,000, with interest, which judgment was entered June 27, 1910.

Where the defendant has the affirmative and plaintiff moves for a direction of a verdict on the pleadings and on defendant’s opening and also for a dismissal of the counterclaim, it is improper practice for the court to direct a verdict for the plaintiff forthwith and reserve decision on the motion to dismiss the counterclaim, as, in the event of a denial of the motion to dismiss the counterclaim, the verdict for plaintiff would be premature. In this- case nearly two months elapsed between the direction of the verdict and the decision granting the motion to dismiss the counterclaim.

But, aside from the question of practice, I think the court erred in dismissing the counterclaim without hearing any evidence.

Even if the defendant were unable to prove the value of the profits of his contract, he might still have been able to prove some damages as a result of the plaintiff’s breach thereof. Bernstein v. Meech, 130 N. Y. 354.

Judgment reversed and new trial ordered, with costs to the appellant to abide the event.

Guy and Platzek, JJ., concur.

Judgment reversed.