Judgment unanimously modified, on the law and the facts, without costs and disbursements, to provide for dismissal of plaintiff's complaint, with costs to defendant as provided in said judgment, but to strike the provisions contained therein for recovery in favor of defendant against plaintiff upon defendant's counterclaim, with interest; and counterclaim severed and remanded for trial.
On the basis of the affidavits before it, Special Term properly held that the...
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