Mittnacht v. Sonntag

172 A.D. 881, 155 N.Y.S. 1087

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1915
• Status: Published

Opinion

Per Curiam:

The first action is for rent of hotel for February,

March, April and May, 1911........................................$400 00 Seven-twelfths of $1,000 bonus on lease from Hovember 1 to Junel,

1911.............................................................. 583 33

$983 33

Credit by payment, February 7, 1912............................... 200 00

Total claim...................................................$783 33

The seven-twelfths of the bonus was an error, as it was bonus on a lease that ran from May first to May first but was payable on each Hovember first during the term of the lease. Hence, when the $1,000 was paid in Hovember, 1910, it was in full of the bonus on the lease from May 1, 1910, to May 1, 1911. A new year began May 1, 1911, and one month of it had expired on June first. Hence, plaintiff was entitled to but one-twelfth of $1,000, that is, $83.33, and four months’ rent, $400, on which was paid $200 February seventh, leaving balance of $288.33 with interest. The judgment and order should be reversed and a new trial granted, costs to abide the event, unless within twenty days plaintiff stipulates to reduce the verdict in accordance with this memorandum, and in which event the judgment is affirmed, without costs to either party. If this reduction be accepted, it may entail loss of any costs to the plaintiff. (See Code Civ. Proc. § 3228.) The verdict in the second action is supported by the evidence and the judgment and order should be affirmed, with costs. Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ., concurred. In action Ho. 1: Judgment and order reversed and new trial granted, costs to abide the event, unless within twenty days plaintiff stipulate to reduce the verdict in accordance with opinion per curiam, in which event the judgment, as so reduced, and the order are affirmed, without costs to either party. In action Ho. 2: Judgment and order affirmed, with costs.