Warren v. Warren

67 N.Y.S. 905, 57 A.D. 628

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 9, 1901
• Status: Published

Opinion

SMITH, J.

It is not apparent why the direction for the annual payment of $66 was given in the original judgment upon the finding of a net rental value of $175. The gross rental value, as sworn to by the majority of the plaintiff’s witnesses upon this application, was only $200. After deducting taxes and insurance, the net rental value must be less than $150, even upon that basis. Some force, however, must be given to the testimony of the witnesses for the defendants. - The weight of their evidence is to the effect that the gross rental value is now only $100 per year. The referee found that the gross rental value was $150, and the net rental value about $90. The conclusion of the court that the rental value has not diminished is unwarranted, we think, from the evidence in the record. The plaintiff would have no cause of complaint if the net rental value were found to be not over §120. If the respondent will consent to a modification of the judgment to assess the present net rental value at §120, and provide for an annual payment to her of $40, the order and judgment may be modified, and as thus modified affirmed, without costs to either party. If she will not so stipulate, the order and judgment must be reversed, and the matter remitted to special term, with costs of this appeal to the appellants.

Judgment and order appealed from reversed on the law and facts, and matter remitted to special term, with costs of the appeal to appellants, unless respondent will stipulate for a modification of the original judgment to assess the present" net rental value at §120 per annum, and provide for the annual payment to the widow of §40 for her dower interest, in which case the judgment as thus modified is affirmed, without costs to either party. Order to be settled by SMITH, J. All concur.