Brill v. Brenner — 66 Misc. 2d 501

Majority

p. 501

Norma Brill, Appellant, v. Esther Brenner, Respondent.

Supreme Court, Appellate Term, First Department,

March 22, 1971.

Joseph Apfel for appellant. Botein, Hays, Sklar <& Herzberg (Graham M. Scheinman of counsel), for respondent.

The trial court erred in failing to uphold plaintiff’s claim for $20 for money loaned to defendant on July 4,1969 and not repaid. That claim is supported by testimony of plaintiff, and is admitted in the testimony of a witness called by defendant, defendant’s daughter, Susan Geller. There is no evidence in the record to the contrary.

p. 502

The judgment entered April 2, 1970, should be unanimously modified, .so as to award plaintiff $20, and as modified, the judgment should be affirmed, including the portion awarding defendant the sum of $8.82 on her counterclaim, without costs to either party in this court or in the court below.

The appeal from an order entered March 12, 1970, denying plaintiff’s posttrial motion to set aside the trial court’s decision, should be dismissed as academic, without costs. (Goldberg v. Orzac, 30 A D 2d 697 .)

Concur — Lupiano, J. P., Streit and Gold, JJ.

Judgment modified, etc.