Polstein v. Bergman — 134 N.Y.S. 609

Majority

p. 609

POLSTEIN v. BERGMAN.

(Supreme Court, Appellate Term.

April 9, 1912.)

Headnote

Appeal and Error (§ 1154*)—Disposition—Modification.

In an action on two causes of action, where the trial court apparently overlooked the fact that the defendant had conceded his liability on one of the causes, a judgment for defendant will be modified on appeal, by directing judgment for plaintiff on such cause of action.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4497; Dec. Dig. § 1154.*]

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

Action by Isaac Polstein against Harry Bergman. From a judgment for defendant, plaintiff appeals. Modified.

Argued March term, 1912, before GUY, LEHMAN, and BI-JUR, JJ.

Manheim & Manheim (Jacob Manheim, of counsel), for appellant.

Otto A. Samuels, for respondent.

The complaint for a first cause of action sets forth the failure of defendant to pay rent of an apartment leased to him, and for a second cause of action sets forth failure to pay for telephone service to the value of $3.25. At the trial the first cause of action was sharply litigated, and we agree with the trial justice that the defendant established his defense to any rent under the lease set forth in the complaint, though perhaps the plaintiff may have a cause of action under an oral lease for another apartment. The trial justice, however, overlooked the fact that near the beginning of the trial the defendant conceded his liability upon the second cause of action.

The judgment must therefore Be modified, by reversing the judgmnt in favor of the defendant, and directing judgment in favor of the plaintiff for the sum of $3.25, without costs of this appeal to either party.