Thames Building & Contracting Co. v. Iaccio

Levy, J.

(dissenting). The prevailing opinion proceeds upon the theory, apparently, of the improbability of any such contract as claimed by defendant. It points out that the dismissal of the complaint was error and attempts to justify the reversal therein suggested, on the ground that the judgment below was clearly against the weight of evidence.” I find it difficult to agree with any of these contentions. Aside from the question of the probabilities, as to which I cannot say that I am at all persuaded, the record discloses quite unequivocally that the version offered by defendant is supported almost fully by the witness Callerie and in part by the plaintiff’s very witness Steigerwald who admits that defendant discussed with him the matter of the alterations. As to the claim of the insufficiency of the proofs, it may well be observed that this point was not urged below. No objection was noted to the reception of the evidence which is criticised in the opinion of the majority, and no motion to dismiss the counterclaim was presented either at the close of defendant’s case or at the conclusion of the entire case. Is it open to plaintiff as appellant now for the first time upon appeal to complain? I think not. This court, as other appellate tribunals, has repeatedly held that this may not be done, and I do not consider, therefore, that it is within our province to entertain the grievance now claimed. In respect to the dismissal of the complaint, but a moment’s reflection is necessary to appreciate how the trial justice arrived at the result.

While the form of the judgment may have been a trifle more intelligible, it seems to me to involve but a simple matter of mathematics. The action was for two months’ rent aggregating *848the sum of $50; the counterclaim for the alterations was for the sum of $150. Having determined the issue in favor of defendant upon such counterclaim in the sum of $150, the court obviously deducted the $50 concededly due plaintiff and rendered judgment for the difference, namely, $100, in favor of defendant after dismissing plaintiff’s complaint. As I have observed, the judgment might well have indicated this perfectly apparent computation. But I do not feel that its absence so affects any substantial rights of plaintiff as to impair the judgment rendered. I dissent and vote to affirm.