Majority
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.