Edelson v. Oxenberg

Action for an accounting, in which plaintiff sought to recover against the defendants, for services rendered, a judgment for an amount equal to twenty-five per cent of the net profits accruing to the defendants under a contract made by the latter with another. Judgment in favor of plaintiff against the defendants adjudging that the former recover of the latter certain sums of money with specified amounts of interest thereon, together with $160.80 costs as taxed, as amended by an order entered August 5, 1941, modified on the law by striking from the first decretal clause thereof the following: “ together with $160.80 costs as taxed making a total of $7048.85.” As so modified the judgment is unanimously affirmed, without costs. Appeal from so much of the order entered August 5, 1941, as denies defendants’ motion to strike from the judgment the provision for costs, *838dismissed, without costs, as academic. Order entered June 25, 1941, granting plaintiff’s motion for summary judgment and incidental relief ■ and dismissing the counterclaim and offset of defendants, unanimously affirmed, without costs. Order entered June 26, 1941, denying defendants’ motion for summary judgment, unanimously affirmed, without costs. In our opinion each order appealed from was properly made. The same conclusion applies to the judgment appealed from, except as to the provision therein for taxable costs awarded against the appellants, which costs were effectually waived by the plaintiff by reason of the relevant provisions of the interlocutory decree, to the entry of which the parties consented. Present — Lazansky, P. J., Carswell, Adel, Taylor and Close, JJ.