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H. M. Rogers & Co. v. Emilio

114 N.Y.S. 111 Court N.Y. App. Term Decision date 1909-01-08 English

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p. 111
H. M. ROGERS & CO. v. EMILIO et al.
(Supreme Court, Appellate Term.
January 8, 1909.)

Headnote

Appeal and Error (§ 1153[1] )—Determination of Cause—Modification.
Where the court, in rendering judgment, makes an error in calculation, and there is no other error in the trial, the court on appeal will modify the judgment and affirm it.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4508; Dec. Dig. § 1153.*]
Appeal from Municipal Court, Borough of Manhattan, First District.
Action by H. M. Rogers & Co. against Joseph Emilio and Joseph Cianco, doing business as Emilio & Co. Judgment for defendants, and plaintiff appeals. Modified and affirmed.
Argued before GIEDERSLEEVE, P. J., and BISCHOFF and GUY, JJ.
Francis B. Mullin, for appellant.
Gerard J. Cuoco, for respondents.

The plaintiff sued to recover $197.91 for fish sold and delivered to defendants. The latter admitted plaintiff’s claim, but counterclaimed $408 for breach of contract on failure to deliver the fish. The court allowed both claims, and, deducting the plaintiff’s claim from defendants’ counterclaim, gave judgment for the difference, with costs in favor of defendant. Plaintiff appeals.

There is sufficient evidence to sustain the counterclaim, but the court made an error in calculation. The plaintiff’s claim is $197.91 damages and $4.96 interest due on the claim, making $202.87. The defendants’ counterclaim is $408. Deducting the first sum from the latter, we have $205.13 damages, whereas the court allowed $294.61 as damages and $20 costs.

The amount of the judgment must be reduced accordingly, and, as modified, affirmed, without costs of this appeal to either party.