
    SUPREME COURT, APPELLATE TERM,
    FEBRUARY, 1907.
    Abraham Cohen, Respondent, v. Israel Jacobwitz and Adolph Gottlieb, Appellants.
    Vendor and purchaser — Adjustment of rights after conveyance or rescission of contract — Recovery of rents collected hy vendee after rescission.
    Appeal by defendant Gottlieb from a judgment of the Municipal Court of the city of New York, ninth district, borough of Manhattan, rendered in favor of the plaintiff for $137.50.
   Per Curiam.

Defendant Gottlieb alone was served and he alone appeared and defended. The plaintiff being the owner of certain premises in the city of New York made a contract for their sale to the defendants Israel Jacobwitz and Adolph Gottlieb; title to be closed on July 6, 1905; rents for that month to belong to the vendees. Title was rejected. It is not disputed that certain of the July rents were handed to the defendants by the janitress of the premises, that is to say, $17 to the defendant Gottlieb, and the balance, viz., $102.50, to the defendant Jacobwitz. This action, which is in conversion, is brought by plaintiff to recover such rents and- judgment for the full amount was awarded him against the defendant Gottlieb. . Though brought in conversion, the cause of action made out upon the proof against Gottlieb was for money had and received and for the amount so proven could be maintained (Cohn v. Beckhardt, 18 N. Y. Supp. 84) i, e., for $17, to which with costs and disbursements the judgment should be reduced, if acceptable to the defendant, but otherwise reversed.

Judgment reduced to seventeen dollars and as thus reduced affirmed, without costs,. unless defendant objects, in which event judgment will be reversed and a new trial ordered, with costs to appellant to abide the event.

Present: Gildebsleeve, MacLean and Amend, JJ.

Judgment reduced to seventeen dollars and as thus reduced affirmed, without costs, unless defendant objects, in which event judgment reversed and new trial ordered, with costs to appellant to abide event.  