Title Guarantee & Trust Co. v. Withers — 105 N.Y.S. 195

Majority

p. 195

TITLE GUARANTEE & TRUST CO. v. WITHERS et al.

(Supreme Court, Appellate Term.

June 27, 1907.)

Headnote

Stipulations—Effect.

Plaintiff sued defendants for services in examining a title and' superintending a transfer. Defendants filed a counterclaim for $000 for plaintiff’s negligence in preparing a contract signed by defendants for the purchase of the property. At the trial it was stipulated that the title had' been properly examined, and that plaintiff was entitled to $245.13 for its services, and that the only question at issue was whether plaintiff was negligent in preparing the contract of purchase. Held that, defendants having recovered $500 on their counterclaim, plaintiff by the express terms of the stipulation was entitled to a reduction of that amount by the sum fixed therein as the value of its services.

Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by the Title Guarantee & Trust Company against Ellis L. Withers and another. From a Municipal Court judgment in favor of defendants on a counterclaim, plaintiff appeals..

Modified and affirmed.

Argued before GILDERSLEEVE, P. J., and SEABURY and PLATZEK, JJ.

Reeves, Todd & Swain, for appellant.

John H. Regan, for respondents.

This action was tried before a jury. At the close of the case both sides moved for the direction of a verdict. Judgment was rendered in favor of the defendants for the sum of $500, the amount of their counterclaim, and for the dismissal of the plaintiff’s complaint.

The plaintiff sued for services rendered at the defendants’ request in examining the title to certain premises. The defendants counterclaimed for damages by reason of the alleged carelessness and negligence on the part of the plaintiff in preparing a contract, signed by the defendants, for the purchase of said preifiises, by reason of which defendants were compelled to comply with certain requirements of the tenement house department. Upon the trial the parties stipulated,

p. 196

among other things, that the “examination of the title * * * was properly and carefully made by the plaintiff, and that the amount of the fee for examination and for drawing and recording the instrument was $245.13.” It was also stipulated that:

“It is the intention of the parties hereto to agree that the only question at issue and to be determined in this action is whether the plaintiff was negligent and careless in preparing the contract for the purchase of said property, and advising defendants to sign said contract.” 1

The evidence amply sustains the finding by the learned trial judge that the defendants were entitled to the sum of $500 damages on their counterclaim; but by the express terms of the stipulation the plaintiff was entitled to the sum of $245.13 for its services, conceded to have been duly and properly rendered. The judgment should therefore be decreased by that amount.

Judgment modified, by reducing the amount of recovery to the sum of $254.87 and appropriate costs in the court below, and, as modified, affirmed, without costs. ■ •