Buccaneer, Inc. v. Cerbone

Tenants failed to establish their defense and counterclaim by any competent evidence (Jackson v. Paterne, 58 Misc. 201, affd. 128 App. Div. 474; Altz v. Lieberson, 233 N. Y. 16). Landlord’s acceptance of the rent payments subsequent to the entry of the final order was not a waiver of its right to prosecute this appeal (8 Carmody-Wait, New York Practice, Appeals in General, §§ 83, 84).

The final order should be unanimously modified by dismissing the counterclaim on the merits and increasing landlord’s recovery to $168 with appropriate costs in the court below; and, as so modified, affirmed, with $25 costs to landlord.

Concur- — -Di Giovanna, Benjamin and Daly, JJ.

Final order modified, etc.