Frank M. Herbert, Inc. v. M & P Scrap Iron & Metal Corp.

Plaintiff appeals from so much of an order as (1) denied plaintiff’s motion for summary judgment, (2) granted defendant’s cross motion for judgment dismissing the complaint pursuant to rules 107, 112 and 113 of the Rules of Civil Practice, and (3) severed the action and directed that defendant’s second counterclaim proceed to trial. No appeal was taken from that part of the order which struck out defendant’s first counterclaim.

The action was brought to recover the balance of the contract price in the sum of $5,100 alleged to be due from defendant to plaintiff for the delivery of a huge…