Moseson v. Blau , 20 A.D.2d 622 ( 1963 )

Judgment unanimously modified on the law and facts in accordance with the memorandum and as modified affirmed, without costs of this appeal to either party. Order entered December 7, 1962, vacated as improperly granted. Memorandum: The judgment should be modified by striking the paragraphs thereof numbered 1, 2, 3, 4 and 6. In the last four numbered paragraphs relief was granted which was neither demanded in the complaint, nor supported by proof at the trial, nor authorized by the decision. Moreover, the declaration in paragraph 1 of the judgment is not consistent with the conclusions of law. In place thereof there should be substituted an adjudication that plaintiff, pursuant to the provisions of paragraph 6 of the lease, is entitled to receive such amounts as represent the difference between (a) the amount paid for taxes which were levied against the demised premises for the fiscal year February 1, 1950-January 31, 1951 and (b) the amounts which are levied for each of the fiscal years, February 1, 1960-January 31, 1961 through the fiscal year February 1, 1969-January 31, 1970, inclusive. The judgment should further provide that the counterclaim of defendant be dismissed. Lastly, the order entered December 7, 1962 should be vacated. The trial court was without authority to grant such relief in the light of the pleadings, the proof and the findings of fact and conclusions of law. (Appeal from a judgment and order of Steuben Trial Term for plaintiff in an action for a declaratory judgment as to a clause in a lease.) Present—• Bastow, J. P., Goldman, McClusky, Henry and Noonan, JJ.