Opinion
May 5, 1944.
Appeal from Supreme Court, Bronx County, HOFSTADTER, J.
Thomas J. Coyle of counsel ( Kelly, Hewitt Harte, attorneys), for appellant.
Irving Markowitz for respondent.
An examination of the record leads to the conclusion that the judgment entered should be modified by permitting the defendant, while not engaged in war production, to do the preparatory work in connection with the starting of furnaces at 6:00 A.M. so that the plant may be ready for operation on the arrival of the employees at 8:00 A.M.
In view of the testimony of the real estate experts as to the rental value of plaintiff's houses, coupled with the actual earnings, the provision of the judgment for the award of damages to the plaintiff in the sum of $800 for rental diminution up to and including December 23, 1943, should be eliminated.
Likewise, since it does not appear that plaintiff has suffered any monetary loss, that part of the judgment which provides for the payment of $100 monthly commencing December 23, 1943, so long as the defendant or its successor is engaged in war production, or until the termination of the present war if sooner, must be eliminated.
The judgment should be modified accordingly and as so modified affirmed, with costs to the appellant.
MARTIN, P.J., TOWNLEY, GLENNON, UNTERMYER and COHN, JJ., concur.
Judgment unanimously modified in accordance with opinion and as so modified affirmed, with costs to the appellant. Settle order on notice.