238 A.D. 810 | N.Y. App. Div. | 1933
The evidence fully warranted a finding that the plaintiff agreed to pay the defendant Eusebio Ghelardi the reasonable value of his services for the management and rehabiliation of the property involved. We are of opinion, however, that an excessive allowance for salvage or rehabiliation services was made. From statements contained in briefs of counsel it is apparent that they are agreed that this work was completed at the latest by the end of the year 1925. A yearly compensation of $500 for this class of service, therefore, should not have been allowed for the years immediately following 1925. The plaintiff is, therefore, entitled to his claimed credit of $1,875 on account of such excessive allowance. The note of the defendant Eusebio Ghelardi indorsed by his codefendant in the sum of $3,500 drew interest at six per cent. The plaintiff was, therefore, entitled to an allowance for interest thereon in the sum of $240, as claimed by plaintiff’s counsel, or in such sum as may be agreed upon by the parties after computation. The contention of plaintiff that the account of the defendant Eusebio Ghelardi should be surcharged with the amount paid by him to agents for collection of rents cannot be sustained, as it does not appear that the work of collection came within the scope of the services for management. In this and other respects we find the judgment proper. The judgment should be modified in so far as the same is in favor of the defendant Eusebio Ghelardi by allowing to the plaintiff the foregoing amounts, the plaintiff to have judgment against the said defendant in such amount as his claim as thus increased exceeds the amount recovered by said defendant upon his counterclaim; and as so modified the judgment should be affirmed, with costs of this appeal to the plaintiff against the defendant Eusebio Ghelardi. Present —Finch, P. J., Merrell, O’Malley, Sherman and Townley, JJ. Judgment modified as indicated in opinion and as so modified affirmed, with costs of appeal to the plaintiff against the defendant Eusebio Ghelardi. Settle order on notice.