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Neu v. Brooklyn Heights Railroad

99 N.Y.S. 290 Court N.Y. App. Div. Decision date 1906-06-08 English

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p. 290
NEU et al. v. BROOKLYN HEIGHTS R. CO. et al.
(Supreme Court, Appellate Division, Second Department.
June 8, 1906.)

Headnote

Money Received—Judgment—Excessiveness. - .
Where, in an action for money had and received, it appeared that plaintiffs, attorneys, were entitled to one-half of the sum at which a claim was adjusted, and it was uncontradicted that the amount paid in settlement was $150, plaintiffs could not recover an amount in excess of $75.
Appeal from Special Term, Kings County.
Action b.y Jacob Neu and another against the Brooklyn Heights Railroad Company and another. _ From a judgment in favor of plaintiffs, _ _ defendant railroad company appeals.
Reversed on condition. .
Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, T-IOOKER, and MILDER, JJ.
I. R. Oeland, for appellant.
Alfred J. Gilchrist, for respondents.

The parties consented to try the issues as if in an action for money had and received. The attorneys under their agreement were entitled to one-half of the sum as adjusted. The sum paid in settlement, as established by the uncontradicted evidence, is $150. This must be taken as the basis of the attorneys’ claim (Pilkington v. Brooklyn Heights R. R. Co., 49 App. Div. 22 , 63 N. Y. Supp. 211 ), and therefore the judgment could not exceed $75.

The judgment must be reversed, and a new trial granted, unless the plaintiffs within 20 days consent to a reduction thereof to $75, without costs, in which case it is affirmed, without costs.

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