Bacon v. Combes

32 Misc. 704, 65 N.Y.S. 510

Opinion

Per Curiam.

Plaintiff testified that defendant said, in May, that she would come in the next month as soon as she could get packed up and ready. He also testified that the arrangement was with the defendant, “ all to take effect a few weeks later when she sold her piano, and after she had packed up to move.”

In view of this evidence, there should have been no finding of a renting prior to July first, as it did not appear until July first that defendant failed to come in June.

The evidence of Murel Bacon showed that some one else moved into the premises in the beginning of August, and so there should have been no allowance of rent for August.

The expense for carpet cleaning is not recoverable, as it was not a damage caused by a breach of the agreement.

Plaintiff is not entitled to costs, as it does not appear that he had an attorney actually engaged in the prosecution of the action. Subd. 3, § 1420, Consol. Act.

The judgment is modified so as to be for fourteen dollars damages, and the prospective charges and fees allowed by law (see § 1420), and as modified is affirmed.

Present: Truax, P. J., Scott and Dugro, JJ.

Judgment modified and as modified affirmed.