Muller v. Barker

90 N.Y.S. 388

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 10, 1904
• Status: Published

Opinion

PER CURIAM.

The plaintiff and the defendant were the only witnesses sworn in this action, and, as the plaintiff had a judgment upon the disputed questions of fact, it must be assumed, for the purposes of this appeal, that the plaintiff’s testimony was true. The total amount claimed by the plaintiff herein was $150.50, and, there being no proof showing that the defendant was indebted to the plaintiff in any greater sum, the judgment should have been for that amount only, instead of $159.30, as rendered. An examination of the record discloses that still further deductions must be made. The check for $19 charged by plaintiff against the defendant, and conceded to have been forged by defendant’s son, is not legally chargeable against the defendant. The plaintiff also admits that he had the use of defendant’s truck, for a portion of one day, the value of the use of which is proven to have been $2. The judgment must therefore be modified by being reduced to the sum of $129.50, and, as thus modified, affirmed, without costs of this appeal to either party.

Judgment modified by reducing amount of recovery to $129.50 and costs in the court below, and, as modified, affirmed, without costs.