Buccaneer, Inc. v. Cerbone

Appellate Terms of the Supreme Court of New York

Buccaneer, Inc. v. Cerbone

32 Misc. 2d 657, 227 N.Y.S.2d 1021, 1961 N.Y. Misc. LEXIS 2782

Appellate Terms of the Supreme Court of New York·Decided June 7, 1961·Published

Opinion

Per Curiam.

Tenants failed to establish their defense and counterclaim by any competent evidence (Jackson v. Paterne, 58 Misc. 201, affd. 128 App. Div. 474; Altz v. Lieberson, 233 N. Y. 16). Landlord’s acceptance of the rent payments subsequent to the entry of the final order was not a waiver of its right to prosecute this appeal (8 Carmody-Wait, New York Practice, Appeals in General, §§ 83, 84).

The final order should be unanimously modified by dismissing the counterclaim on the merits and increasing landlord’s recovery to $168 with appropriate costs in the court below; and, as so modified, affirmed, with $25 costs to landlord.

Concur- — -Di Giovanna, Benjamin and Daly, JJ.

Final order modified, etc.

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Per Curiam.

Tenants failed to establish their defense and counterclaim by any competent evidence (Jackson v. Paterne, 58 Misc. 201, affd. 128 App. Div. 474; Altz v. Lieberson, 233 N. Y. 16). Landlord’s acceptance of the rent payments subsequent to the entry of the final order was not a waiver of its right to prosecute this appeal (8 Carmody-Wait, New York Practice, Appeals in General, §§ 83, 84).

The final order should be unanimously modified by dismissing the counterclaim on the merits and increasing landlord’s recovery to $168 with appropriate costs in the court below; and, as so modified, affirmed, with $25 costs to landlord.

Concur- — -Di Giovanna, Benjamin and Daly, JJ.

Final order modified, etc.

Buccaneer, Inc. v. Cerbone, 32 Misc. 2d 657, 227 N.Y.S.2d 1021, 1961 N.Y. Misc. LEXIS 2782 (N.Y. Ct. App. 1961).

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Opinion

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