Miller v. Marshall

Appellate Division of the Supreme Court of New York

Miller v. Marshall

56 N.Y.S. 865

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

DecidedMarch 24, 1899

StatusPublished

This text of 56 N.Y.S. 865 (Miller v. Marshall) 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

Miller v. Marshall, 56 N.Y.S. 865 (N.Y. Ct. App. 1899).

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Opinion

WILLARD BARTLETT, J.

Upon the pleadings and the admission in the record the plaintiff was entitled to recover at least §52.50, whereas he was awarded only §50. The amount of the recovery also entitled him to $12 extra costs, under the statute (Laws 1882, c. 410, § 1420, made applicable to the municipal court by section 1369 of the Greater Rew York charter). Although it appears that the defendant’s attorney offered to allow the judgment to be amended by adding $2.50 to the amount of the recovery, this offer was not made until after the appeal was taken; and there was no offer to correct the judgment by adding the amount of extra costs to which the appellant was entitled. The plaintiff also insists that the court should have awarded him $37.50 more than he recovered on account of his claim for rent; but the proof was conflicting in relation to this portion of his claim, and we cannot interfere with the conclusion of the justice upon the question of fact. By reason of the errors previously discussed, however, we are constrained to reverse the judgment, and direct a new trial. Ordered accordingly.

Judgment of the municipal court reversed, and new trial granted; costs to abide the event All concur.

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WILLARD BARTLETT, J.

Upon the pleadings and the admission in the record the plaintiff was entitled to recover at least §52.50, whereas he was awarded only §50. The amount of the recovery also entitled him to $12 extra costs, under the statute (Laws 1882, c. 410, § 1420, made applicable to the municipal court by section 1369 of the Greater Rew York charter). Although it appears that the defendant’s attorney offered to allow the judgment to be amended by adding $2.50 to the amount of the recovery, this offer was not made until after the appeal was taken; and there was no offer to correct the judgment by adding the amount of extra costs to which the appellant was entitled. The plaintiff also insists that the court should have awarded him $37.50 more than he recovered on account of his claim for rent; but the proof was conflicting in relation to this portion of his claim, and we cannot interfere with the conclusion of the justice upon the question of fact. By reason of the errors previously discussed, however, we are constrained to reverse the judgment, and direct a new trial. Ordered accordingly.

Judgment of the municipal court reversed, and new trial granted; costs to abide the event All concur.

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Bluebook (online)

56 N.Y.S. 865, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-marshall-nyappdiv-1899.