The evidence introduced upon the issues, created by the denials in the answer of the averments of the first, second, fourth and fifth causes of action set forth in the amended complaint, shows that plaintiff was entitled to a full accounting — unless the proof as to the separate affirmative defenses *380was adequate to defeat that right. The first separate defense was abandoned. The second separate defense was pleaded only as a “ partial ” defense, while the third separate defense was a plea of payment, discharge and release. The proof as to the third separate defense falls short of substantiation. Therefore, the judgment dismissing the complaint on the merits cannot be sustained.
Plaintiff is entitled to an interlocutory judgment of accounting. Upon the accounting, evidence may be taken which will show whether or not the transactions of June 19, 1923, amounted to a settlement between the parties as of June 1, 1923. The meaning to be given to the indorsement upon the check for $205,838.33, viz.: “ In full payment of all outstanding indebtedness June first less counterclaims of record to date,” must be determined by the referee in the light of the evidence to be adduced. .Upon the present record, it is virtually impossible to arrive at a satisfactory conclusion as to its import.
Nor is it clear what, if any, “ counterclaims of record ” existed, or whether such as existed were intended to survive the arrangement then entered into. Likewise whether or not defendant was released from its obligation, as guarantor of the unpaid accounts, is a question of fact which, with many others, must be resolved upon the accounting. We cannot now determine them.
The findings of fact and conclusions of law made by the Special Term, in so far as they are in conflict with these views, should be reversed and new findings appropriate to sustain an interlocutory judgment of accounting should be made. To the foregoing extent, I concur with Mr. Justice Martin.
O’Malley, J., concurs.
Judgment reversed, with costs, and interlocutory judgment directed to be entered in favor of plaintiff, with costs, for an accounting before a referee to be appointed by the order. Settle order on notice. The findings inconsistent with this determination should be reversed and such new findings made of facts proved upon the trial as are necessary to sustain the judgment hereby awarded.