SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
July 3, 1969
CIVETTA CONTRACTING CORP., RESPONDENT,
WESTERLY ASSOCIATES, INC., ET AL., APPELLANTS
Order entered January 7, 1969, unanimously modified on the law by vacating the judgment entered herein and substituting therefor summary judgment to plaintiff in the sum of $6,422 with interest and severing the causes of action as to the balance of plaintiff's claim and as so modified otherwise affirmed without costs or disbursements to any party.
Concur -- Stevens, P. J., Eager, Capozzoli, Nunez and Steuer, JJ.
Plaintiff sues the corporate defendants on a construction contract and the individual defendants as guarantors for the performance of the corporations. Suit is for the balance withheld on the contract price, amounting to $5,572, and $29,528.68 as extras. Special Term granted summary judgment. We agree that no issue was presented as to the balance due. As to the extras, there are issues presented as to whether these come within the terms of the contract, except as to one item amounting to $850. The order directing summary judgment is consequently modified to direct judgment for these items only, leaving the balance for the outcome of the trial. Special Term properly disposed of the motion for leave to amend the answer. All of the so-called defenses which would properly tend to defeat recovery are provable by virtue of the denials in the answer.
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