James v. Fink — 173 Misc. 730

Majority

p. 730

Mary James, Appellant, v. Joseph H. Fink, Prosper Home Builders, Inc., a Domestic Corporation, and Eden Homes, Inc., a Domestic Corporation, Respondents.

Supreme Court, Appellate Term, First Department,

March 28, 1940.

p. 731

Burchard Hutcher, for the appellant.

Julius Solomon, for the respondents Joseph H. Fink and Eden Homes, Inc.

Israel H. Mandel, for the respondent Prosper Home Builders, Inc.

Defendant received from the plaintiff moneys to pay off the sewer assessment in full. At the time of the closing the assessment had been reduced by thirty per cent, of which fact plaintiff had no knowledge. While there had been an adjustment as of a date prior to the date of closing, still plaintiff was entitled to receive the benefit of the reduction in the assessment. (Lounsbury v. Potter, 37 N. Y. Super. Ct. 57 ; Pirsson v. Arkenburg, 29 N. Y. St. Repr. 529 .)

So much of judgment and order as grants defendant Eden Homes, Inc., summary judgment reversed, and motion denied as to said defendant; judgment and order affirmed as to other defendants.

So much of order as denies plaintiff's motion for summary judgment against Eden Homes, Inc., reversed, with ten dollars costs, and motion granted as to said defendant; order affirmed as to other defendants.

All concur. Present — McCook, Hammer and Miller, JJ.

Cases cited

Lounsbury v. Potter 37 N. Y. Super. Ct. 57 N.Y. Super. Ct. 1874-01-31 p. 731