Childs v. Swift — 91 N.Y.S. 768

Majority

p. 768

CHILDS v. SWIFT.

(Supreme Court, Appellate Term.

January 17, 1905.)

Headnote

1. Judgments—Excessiyeness—Modification.

Where a judgment of the Municipal Court appealed from Is excessive, it will be reduced on appeal by subtracting the excess and adjusting the costs as authorized by Municipal Court Act (Laws 1902, p. 1585, c. 580) § 332, subd. 2, and, as so modified, will be affirmed.

p. 769

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

Action b)’' Ásaph P. Childs against John Swift. From a Municipal Court judgment in favor of. plaintiff, defendant appeals.

Modified.

Argued before SCOTT, MacLEAN, and-DAVIS, JJ.

J. M. Ferguson, for appellant.

Watts & Merrill, for respondent.

The liability of the defendant for one-third (or $116.66) of the amount alleged in the second cause of action herein to have been advanced by the plaintiff at the special instance and request of the defendant, and appearing to be for the complete, organization, etc., of a joint mining enterprise, in which the plaintiff, the defendant, and one Kennedy were interested, was founded on fact, and the fact found in favor of the plaintiff, calling for no interference on this appeal. The trial justice, however, rendered judgment for $216.66, which, in view of a conceded and admitted liability of only $66.66 on a promissory note, the subject of the first cause of action, exceeds concession and proof by $33.34. The judgment must therefore be reduced by subtracting such excess, and adjusting the costs in conformity to the provisions of subdivision 2 of section 332 of the Municipal Court Act (Laws 1902, p. 1585, c. 580).

Judgment modified as directed, and, as modified, affirmed, without costs of this appeal to either party. All concur.