Levy v. Popper

• Decision Date: 16 May 1911
• Citation: 202 N.Y. 552,95 N.E. 697
• Parties: LEVY v. POPPER et al.
• Court: New York Court of Appeals Court of Appeals

202 N.Y. 552

95 N.E. 697

LEVY

v.POPPER et al.

Court of Appeals of New York.

May 16, 1911.

Appeal from Supreme Court, Appellate Division, First Department.

Action by William Levy against Edward Popper and another. From a judgment of the Appellate Division (134 App. Div. 963,119 N. Y. Supp. 1132), affirming a judgment granting insufficient relief, plaintiff appeals. Modified and affirmed.John R. Dos Passos, for appellant.

Daniel P. Hays, for respondents.

PER CURIAM.

[1][2] Upon the merits we have reached the conclusion that the issues joined in the pleadings have been properly determined. But it appears that through some oversight the amount conceded to be due and owing the plaintiff, to wit, the sum of $1,709.54, which was tendered to him by the defendants before this action was brought, was not included in the judgment. In view of the fact that this was an equity action, and is a final adjudication of the differences existing between the plaintiff and the defendants, the item should have been included in the judgment, unless it appeared that the amount had been paid into court or the tender kept alive. The respondents' counsel, upon the argument of this appeal, consented that the item might now be included. This correction, however, could have been made on motion at the Special Term, without the expense of an appeal upon a case and exceptions. We therefore are of the opinion that the modification ordered should not affect the question of costs .

The judgment should be modified, so as to allow the plaintiff to recover the amount tendered, to wit, $1,709.54, and, as so modified, affirmed, with costs to the respondents.

CULLEN, C. J., and GRAY, HAIGHT, VANN, WERNER, HISCOCK, and COLLIN, JJ., concur.

Judgment accordingly.