Rae v. Sutbros Realty Corp.

• Court: New York Supreme Court — Appellate Division
• Citation: Rae v. Sutbros Realty Corp., 174 N.Y.S.2d 871, 6 A.D.2d 716 (N.Y. App. Div. 1958)
• Decision Date: 19 May 1958
• Parties: , 6 A.D.2d 718 Joseph RAE, respondent, v. SUTBROS REALTY CORP., Sutter Bros. Marine Basin, Inc., and Alphonse Sutter, appellants.

Page 871

174 N.Y.S.2d 871

6 A.D.2d 716, 6 A.D.2d 718

Joseph RAE, respondent, v. SUTBROS REALTY CORP., Sutter Bros. Marine Basin, Inc., and Alphonse Sutter, appellants.

Supreme Court, Appellate Division, Second Department.

May 19, 1958.

As Amended May 20, 1958.

Alfred D. Jahr, New York City, for appellant.

David Kashman, Brooklyn, for respondent (Harold L. Turk, Brooklyn, on the brief).

Before WENZEL, Acting P. J., and MURPHY, UGHETTA, HALLINAN and KLEINFELD, Jj.

MEMORANDUM DECISION.

In an action to recover real property, to recover damages for withholding said property, and for other relief, the appeal is from a judgment entered after trial before a Special Referee, to whom the action had been referred to hear and determine, adjudging that respondent has been since January 15, 1954, and now is, the fee owner of the property, that he is entitled to immediate possession of said property, and awarding him damages of $12,500.

Judgment reversed on the law and the facts, without costs, interlocutory judgment directed to be entered, and action remitted to the trial term for further proceedings not inconsistent with the views hereinbelow set forth; said interlocutory judgment is to contain all the provisions of the judgment appealed from except paragraphs '11' and '14', and so much of paragraph '10' as follows the words 'from him'. Findings of fact insofar as they may be inconsistent herewith are reversed, and new findings are made as indicated herein.

For the withholding of the subject real property, respondent was entitled to money damages consisting of either 'the rents and profits or the value of the use and occupation of the property' (Civil Practice Act, §§ 990, 1011), depending on what 'may be just under the circumstances' of the case (Dime Sav. Bank v. Altman, 275 N.Y. 62, 71, 9 N.E.2d 778, 781). However, the term 'rents and profits' means the net rents and profits, that is,...