Blanchart Financial Corp. v. Oak Point Dairies of New Jersey

Judgment unanimously modified, on the law, to the extent of vacating so much of the first decretal paragraph as dismisses that portion of defendant’s counterclaim by which defendant sought $3,000 damages for “ paper spoilage ”, severing that portion of the counterclaim and directing a new trial thereon; and otherwise the judgment is affirmed, without costs or disbursements to either party. Execution on the judgment will be stayed to the extent of $3,000 plus interest thereon, pending determination of the trial upon the severed portion of the counterclaim ordered herein. The proof adduced on defendant’s claim of $3,000 in damages because of paper spoilage presented a factual issue for resolution by the jury. Hence the trial court erred in dismissing that claim, as a matter of law, without permitting the jury to pass on it. Concur — Stevens, J. P., Eager, Tilzer, McGivern and Bastow, JJ.