Smilo v. Cooper-Smith

In an action for specific performance of an agreement to lease, and for damages arising from breach of that agreement and wrongful termination of a business conducted by plaintiff upon the demised premises, each party appeals from the judgment in plaintiff’s favor for damages. Judgment, insofar as appealed from, modified on the facts by increasing the award of damages from $4,440 to $5,000, the amount of damage alleged in the amended complaint, and as so modified unanimously affirmed, with' costs to respondent-*1043appellant. In computing plaintiff’s damage, the rental of the property, one of the expenses offset against gross income, was erroneously calculated at an amount greater than that fixed by the agreement and unpaid. Present — Nolan, P. J., Johnston, Adel, Sneed and Wenzel, JJ.