Majority
p. 1116CAHILL v. TORREY et al. (Supreme Court, Appellate Term. April 8, 1911.)
Headnote
Appeal from City Court of New York, Trial Term. Action by Santiago P. Cahill, as receiver of 'Pile Why Dairy Lunch Company, in proceedings supplementary to execution against Charles H. Torrey and Howard M. Davis, interpleaded by the Consolidated Gas Company of New York. Plaintiff appeals. Modified and affirmed.See, also, 121 N. Y. Supp. 598 .
Alva Collins, for appellant.
Harry Cook (Nathan April, of counsel), for respondents.
There is no competent evidence to show that the defendants have paid: the gas bills for the premises occupied by the corporation at 3 East Fourteenth street and at 391 Broadway. The defendants have apparently not made any claim, either in their answer or at the trial, that they are entitled to any rebate for gas used at these premises. The findings that the defendants are entitled to these rebates, amounting to $12S¡74, must therefore
p. 1117
be reversed, and the judgment modified, by providing that the defendants are_ entitled to rebates amounting to $802.41, with interest, and the plaintiff to rebates amounting to_ $128.74, with interest, and that the chamberlain of the city of New York shall pay to the parties pro rata the fund of $926.39, together with accrued interest thereon, less his fees for paying out said moneys, and by striking out the provision for costs, and. as modified, affirmed, without costs on this appeal.