Spergel v. Wm. Lustgarten Co. — 159 N.Y.S. 740

Majority

p. 740

SPERGEL et al. v. WM. LUSTGARTEN CO., Inc.

(Supreme Court, Appellate Term, First Department.

June 26, 1916.)

Headnote

Appeal and Error <@=>1151(2)—Review—Modification of Judgment.

Where defendant in his counterclaim asked judgment for two months’ rent, amounting to $70, a judgment rendered in his favor for $105 will be reduced, and affirmed as modified.

[Ed. Note.—-For other cases, see Appeal and Error, Cent. Dig. §§ 4498-4500, 4503-4505; Dec. Dig. <@=>1151(2).]

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

Action by William Spergel and Max Spergel, copartners doing business under the firm name of Spergel Bros., against the William Lustgarten Company, Incorporated, in which defendant filed a counterclaim. Judgment for defendant on its counterclaim, and plaintiffs appeal. Modified and affirmed.

Argued June term, 1916,

before GUY, BIJUR, and PHILBIN, JJ.

Bernard Modell, of Brooklyn, for appellants.

August Weymann, of New York City, for respondent.

The learned court below properly denied relief to the plaintiffs. Defendant, in his counterclaim, asked judgment for but "two months’ rent, amounting to $70, but judgment was rendered in his favor for $105, which was irregular.

The judgment will therefore be reduced to $70, with appropriate costs, and, as so modified, affirmed, with $10 costs in this court.