In re Eisenberg

Appellate Division of the Supreme Court of New York

In re Eisenberg

3 A.D.2d 699, 159 N.Y.S.2d 108, 1957 N.Y. App. Div. LEXIS 6462

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 11, 1957

StatusPublished

This text of 3 A.D.2d 699 (In re Eisenberg) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Eisenberg, 3 A.D.2d 699, 159 N.Y.S.2d 108, 1957 N.Y. App. Div. LEXIS 6462 (N.Y. Ct. App. 1957).

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Opinion

Inasmuch as the petition alleged that respondent occupied 630.22 square feet of space and asked that the court fix the emergency rent on that space, there was no basis for the court’s fixing rent on an area of 669 square feet. Although, at the trial, there was some testimony by an expert that the tenant’s space, with partitions removed, would be 669 square feet, there was no amendment or even a request to amend the petition in this respect. No reason is shown why the general rule that — “A party must recover not only according to his proof but also according to his pleadings ” — should not be applied (see Bosner v. Z7. S. Waterways Corp., 278 App. Div. 168, 170, affd. 304 N. Y. 580). The rent must therefore be computed on the basis of 630.22 square feet. The dispute as to respondent’s exclusion from one half of the secretarial space may not be considered in this proceeding to fix rent. Order [700]*700unanimously modified to the extent of fixing the rent at $131.30 a month and, as so modified, affirmed, without costs. Settle order on notice. Concur1— Breitel, J. P., Rabin, Frank and Valente, JJ.

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Inasmuch as the petition alleged that respondent occupied 630.22 square feet of space and asked that the court fix the emergency rent on that space, there was no basis for the court’s fixing rent on an area of 669 square feet. Although, at the trial, there was some testimony by an expert that the tenant’s space, with partitions removed, would be 669 square feet, there was no amendment or even a request to amend the petition in this respect. No reason is shown why the general rule that — “A party must recover not only according to his proof but also according to his pleadings ” — should not be applied (see Bosner v. Z7. S. Waterways Corp., 278 App. Div. 168, 170, affd. 304 N. Y. 580). The rent must therefore be computed on the basis of 630.22 square feet. The dispute as to respondent’s exclusion from one half of the secretarial space may not be considered in this proceeding to fix rent. Order [700]*700unanimously modified to the extent of fixing the rent at $131.30 a month and, as so modified, affirmed, without costs. Settle order on notice. Concur1— Breitel, J. P., Rabin, Frank and Valente, JJ.

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Bluebook (online)

3 A.D.2d 699, 159 N.Y.S.2d 108, 1957 N.Y. App. Div. LEXIS 6462, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-eisenberg-nyappdiv-1957.

Opinion

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