Miller v. Marshall — 56 N.Y.S. 865

Majority

p. 865

MILLER v. MARSHALL.

(Supreme Court, Appellate Division, Second Department.

March 24, 1899.)

Headnote

1. Appeal—Judgment — Amendment Pending Appeal—Admissions op Record.

Where, on the pleadings and admission in the record, a party was entitled to a larger judgment than was awarded him, he is entitled to a reversal, though pending appeal the opposite party offers to allow the judgment to be amended.

2. Same—Finding of Fact—Conflicting Proof.

A finding of fact will not be reviewed, the evidence conflicting.

Appeal from municipal court, borough of Manhattan, Third judicial district.

Action by Louis Miller against George Marshall. There was a judgment for plaintiff for less than the relief demanded, and he appeals. .

Reversed.

Argued before GOODRICH, P. J., and CULLER, BARTLETT, HATCH, and WOODWARD, JJ.

Burt Jay Humphrey, for appellant.

Gaston P. Livett, for respondent.

Upon the pleadings and the admission in the record the plaintiff was entitled to recover at least §52.50, whereas he was awarded only §50. The amount of the recovery also entitled him to $12 extra costs, under the statute (Laws 1882, c. 410, § 1420, made applicable to the municipal court by section 1369 of the Greater Rew York charter). Although it appears that the defendant’s attorney offered to allow the judgment to be amended by adding $2.50 to the amount of the recovery, this offer was not made until after the appeal was taken; and there was no offer to correct the judgment by adding the amount of extra costs to which the appellant was entitled. The plaintiff also insists that the court should have awarded him $37.50 more than he recovered on account of his claim for rent; but the proof was conflicting in relation to this portion of his claim, and we cannot interfere with the conclusion of the justice upon the question of fact. By reason of the errors previously discussed, however, we are constrained to reverse the judgment, and direct a new trial. Ordered accordingly.

Judgment of the municipal court reversed, and new trial granted; costs to abide the event All concur.