Opinion
May 8, 1935.
Appeal from Supreme Court of Livingston County.
Edward E. Brogan, for the appellants.
Austin W. Erwin, for the respondent.
Present — SEARS, P.J., TAYLOR, EDGCOMB, CROSBY and LEWIS, JJ.
Although the judgment does not follow the verdict in awarding possession of the chattel (a ring) to the plaintiff, but simply awards a money judgment for the value of the ring as found by the jury, nevertheless, inasmuch as it is alleged in the answer that the chattel had been removed by burglary and the defendant's whole case depended on that circumstance, and considering also that no objection was made to the form of the judgment by the appellants in their brief filed upon the argument upon their appeal, and as the defect, had it been called to the attention of this court upon the original argument, could have been corrected, we feel justified in disregarding the defect as wholly unsubstantial. ( Retter v. Webber, 217 App. Div. 193.) All other points set forth in the moving papers received full consideration upon the submission of the appeal.
Motion for reargument denied, with ten dollars costs; motion for leave to appeal to the Court of Appeals denied.