McNulty v. Duffy

Leventritt, J. The lax manner in which this action was tried has resulted in a very confused and unsatisfactory record. It is [780] clear, however, that the recovery granted the plaintiff is excessive. To avoid the necessity of sending the case back for a retrial, with a repetition, possibly, of similar methods and similar results, we have struggled with the testimony to extract such reliable figures as would enable us to modify the judgment in accordance with the requirements of substantial justice. The plaintiff pleaded four causes of action against the defendant, one of which was disallowed by the court, and, as no cross-appeal was taken by the plaintiff, it is not before us. The three which were litigated were for work, labor and services rendered, for breach of contract to pay damages resulting from interference with plaintiff’s business, and for a breach of •contract to pay for the privilege of erecting a platform in front of plaintiff’s place of business. As to the first cause of action, the claim of twenty dollars and seventy-five cents is supported by evidence. Though it is, in part, disputed, we shall accept the judgment as solving all disputed questions of fact on all the causes of action in favor of the prevailing party. As to the second cause of action, the plaintiff claims that certain alterations of the premises, which the defendant was making, caused an interruption in the prosecution of his trade, and that for a period of three or four days he was thereby prevented from transacting any business. The only testimony introduced on this branch, to serve as a measure of damages, was that his wages-account, including his own services, amounted to thirty-five dollars per week. The outlay pending this enforced idleness for half a week would, therefore, be adequately reimbursed by the allowance of seventeen ■dollars and fifty cents. As to the third cause of action, the plaintiff testified that the defendant, through her agent, agreed to pay him at least thirty dollars for permitting the erection of the platform in front of his shop. No greater sum was mentioned and the limit of the plaintiff’s recovery for that item was consequently thirty dollars. On the three causes of action, therefore, 'the plaintiff was entitled in the aggregate to no more than sixty-eight dollars and seventy-five cents. The defense was a general denial and a counterclaim for rent in the sum of eighty-five - dollars. Having adopted the conclusions of the justice in favor of the plaintiff’s causes of action, as such, the general denial need not be further considered. As to the counterclaim, the plaintiff, who was the tenant of the defendant, conceded that sixty-five dollars, [781] the rent for the month of June, 1899, was unpaid. The defendant claimed that the June rent was seventy-five dollars, and that in addition thereto there was an unpaid balance of ten dollars for May. The rent was admittedly payable on the first day of each month in advance.- Somewhere between the tenth and fifteenth of June the plaintiff was dispossessed for the nonpayment of the rent accruing on the first of that month. The introduction of the papers on the dispossess proceeding would have readily fixed the amount of the plaintiff’s liability. In the absence of this controlling proof, we are constrained, under the finding of the justice, to accept the plaintiff’s contention that only sixty-five dollars was due. This entire sum must be allowed as a counterclaim. The entire rent was payable on the first of June, and the plaintiff is not entitled to any deduction for the portion of the month subsequent to his dispossession. Code Civ. Proc., § 2253; Cushingham v. Phillips, 1 E. D. Smith, 416; Bernstein v. Heinemann, 23 Misc. Rep. 464. Our conclusion then is, that under the construction most favorable to the plaintiff, the evidence will not support the judgment of fifty-three dollars awarded him. We find that on his three causes of action he is entitled at most to sixty-eight dollars and seventy-five cents; that from this sum there must be deducted the defendant’s established counterclaim for rent in the sum of sixty-five dollars, and that the judgment should have been for three dollars and seventy-five cents, to which sum it will be reduced. Judgment in favor of plaintiff modified by reducing it to the sum of three dollars and seventy-five cents, and as modified affirmed, without costs to either party. Ebbed hah, P. J., and MacLean, J., concur. Judgment modified by reducing it to three dollars and seventy-five cents, and as modified affirmed, without costs.