Majority
p. 846Herman Schulman, Respondent, Appellant, v. Philip I. Schick, Appellant, Respondent.
Headnote
Landlord and tenant — action to rescind lease —judge with consent of parties decided case as one for deceit — no objection can be made to action of court.Appeal by the defendant from a judgment of the Supreme Court in favor of the plaintiff, entered in the Columbia county clerk’s office on January 10, 1925, upon the decision of the court rendered after a trial at the Columbia Trial Term, a jury having been-waived. Appeal by the plaintiff from said judgment on the ground of insufficiency of damages.
The action was brought to rescind the lease. The trial judge, at the close of the evidence, announced that he would take the case, treat it as an action of deceit, determine the issues, and render judgment. The attorneys assented thereto. Therefore, the objection that a recovery was had as in an action of deceit rather than upon a cause of action for cancellation of the lease is untenable. Judgment modified by increasing the damages recovered by the sum of $1,600, and as modified unanimously affirmed, with costs to the appellant, plaintiff. The court disapproves finding of fact numbered 13. It finds that the fair rental value of the property during the period it was in the possession of the plaintiff was $900.