Berrian v. Olmstead

4 E.D. Smith 279

• Court: New York Court of Common Pleas
• Decided: June 15, 1855
• Status: Published

Opinion

By the Court.

Ingraham, First J.

The cause was tiled on the 4th of October, 1854. The statute 2 R. L. p. 370, § 87, requires the justice to' give judgment within four days thereafter,

(a) The four days thereafter expired with the 8th October, and judgment was not rendered until the 9th Octo- ’ her. This was not in compliance with the statute, and the justice lost jurisdiction of the case. (19 Wend. 371; Nodine v. Partington, Ct. Com. Pleas, G. T. June, 1851; Kane v. Dulex, May Term, 1854, 7 Cow. 147; 11 Barb. S. C. R. p. 96.)

The justice was limited to three months as the period to which, under any circumstances, he could adjourn the case; hut from the adjournments made by him, must be deducted the first adjournment, which was, by consent, to the 21st July. After that, the period of three months had not elapsed until judgment, (a)

The damages also, were, I think, too much. The additional rent agreed.to be paid was, in the absence of any proof of special damages, to be deducted from the value of the improvements in estimating the damages to be recoyered. Where the claim relates to a house, the expenses of removing furniture, and .some expenses of. a similar nature may be allowed; but not so .where the tenant remained in the occupation of the premises. In this case the plaintiff proved, by a witness, what he thought the vault to be worth, which, under the case of Gilee v. O’Toole, 4 Barb. 263, is of doubtful propriety, and the justice there gave the full-value without charging the plaintiff for the rent, which he would have paid if the contract had been completed. This was giving the plaintiff the full use of the improvement, without requiring her to pay any thing for rent of it.

Judgment reversed.

Extended to eight days, b.y §47 of the District Court consolidation act. (See Laws of 1857, vol. 1, p. 707.)—Rep.

See § 27 of the act cited in note (a). p.279.—Rep.