Belson v. Chernabaeff

MARKS, J. This is an appeal from a judgment against defendant in the sum of $21,012.66 in an action where recovery was sought under one cause of action for damages for breach of contract, and under another for money had and received.

The only question presented by appellant is that’the judgment is excessive in that a portion of it is not supported by the evidence and is contrary to stipulation of counsel made in the trial court.

Respondent has filed no brief but under date of February 20, 1946, his counsel wrote a letter to the clerk of this court to the effect that the judgment was excessive and should be reduced by the sum of $6,400 to make it conform to the evidence and the stipulations made in open court. Under date of February 26, 1946, counsel for appellant wrote agreeing that the judgment should be reduced by $6,400 to $14,612.66.

As these letters indicate that counsel are in agreement as to the reduction of the judgment we see no need to pursue the matter further. They have not agreed on taxing the costs of appeal, evidently leaving that matter to this court for determination. The judgment was erroneous in a substantial amount. One of the grounds for new trial, specified in the notice of motion, was that the amount of the judgment was excessive. As the error could have been corrected at that time, which was not done, we believe appellant should recover his costs of appeal.

The judgment is reduced by $6,400 to $14,612.66, and as so reduced is affirmed. Appellant will recover his costs of appeal.

Barnard, P. J., and Griffin, J., concurred.