Childs v. Swift

Appellate Terms of the Supreme Court of New York

Childs v. Swift

91 N.Y.S. 768

Appellate Terms of the Supreme Court of New York·Decided January 17, 1905·Published

Opinion

MacLEAN, J.

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.

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MacLEAN, J.

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.

Childs v. Swift, 91 N.Y.S. 768 (N.Y. Ct. App. 1905).

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