Sierra v. Cohn — 144 N.Y.S. 454

Majority

p. 454

SIERRA v. COHN et al.

(Supreme Court, Appellate Term, First Department.

December 4, 1913.)

Headnote

Appeal and Error (§ 1177^[1] )—Review—Disposition of Cause.

Where plaintiff appealed, from a judgment for less than the amount demanded, and defendants appealed, claiming that judgment should .have been rendered in their favor, so that the only point on which the parties agreed was that the judgment rendered was not correct, it would be reversed, and a new trial ordered.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4597-4604, 4606-4610; Dec. Dig. § 1177.*]

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

Action by Lulu H. Sierra against William I. Cohn and another, trading as W. I. & J. Cohn. From a Municipal Court judgment in favor of plaintiff for less than the relief demanded both parties appeal.

Reversed, and new trial ordered.

Argued October term, 1913, before SEABURY, GUY, and BI-JUR, JJ.

Thomas W. Constable, of New York City, for plaintiff.

Samuel S. Breslin, of New York City, for defendants.

The record in this case is not in a satisfactory con-_ dition, and it is impossible to determine from it exactly what relief either party is entitled to. The plaintiff has recovered judgment for $55.82, and claims that the judgment in her favor should be increased to $70.37. The defendants, on the other hand, claim that judgment should have been rendered in their favor. The only point upon which the parties agree is that the judgment rendered is not correct. Under these circumstances, and in view of the condition of the record, we think the interests of justice will be best served by ordering a new trial. As the case must be retried, we refrain from any expression of opinion as to the contentions of either party.

Judgment reversed, and new trial ordered, without costs to either party. All concur.