Weisman v. Wolinsky — 147 N.Y.S. 869

Majority

p. 869

WEISMAN v. WOLINSKY.

(Supreme Court, Appellate Term, First Department.

May 14, 1914.)

Headnote

Appeal and Error (§ 1151*)—Determination—Modification.

Where plaintiff conceded defendant’s' counterclaim and was willing to have it deducted on appeal, a judgment which did not dispose of the counterclaim should be modified by a deduction of the amount of the counterclaim and, as modified, affirmed.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4498-4506; Dec. Dig. § 1151.*]

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

Action by Harry Weisman against William Wolinsky. From judgment for plaintiff, defendant appeals.

Modified and affirmed.

Argued May term, 1914, before GUY, BIJUR, and PENDLETON, JJ.

Samuel Bitterman, of New York City, for appellant.

Abraham Greenberg, of New York City, for respondent.

Plaintiff sues to recover $161.70, balance due for money loaned. The answer, after various denials and defenses, sets up a counterclaim for $30 for rent, which was admitted. After the trial the court gave judgment for plaintiff without apparently passing upon the counterclaim. As it was conceded, however, that this $30 was due, and the plaintiff is willing to have it deducted, the judgment is modified by reducing the same by $30 and appropriate costs in the court below and, as so modified, affirmed, with $10 costs to respondent. All concur.