
    Max Beltran, Respondent, v. Margarete Kuhl et al., Appellants.
    Supreme Court, Appellate Term, First Department,
    October 25, 1956.
    
      Albert A. Raphael, Jr., for appellants.
    
      Albert A. Klein for respondent.
   Per Curiam.

In this action for treble damages the proof shows conclusively that the landlord was not guilty of a willful violation and did not, after the making of the definitive order of the Rent Commission, collect any rent in excess of the maximum rental fixed thereby. The amount of overpayments previously collected is not disputed, nor the fact that landlord proffered payment thereof prior to the commencement of this action. However, landlord failed to include interest. Tenant is therefore entitled to costs (N. Y. City Mun. Ct. Code, § 164, subd. 3-a) upon the recovery of partial judgment, herewith directed, for the single amount of the overcharge with interest.

The order should be modified to the extent of granting partial judgment to plaintiff in the amount of $389.40, with interest and costs, and dismissing the balance of his claim, and as modified affirmed, without costs.

Eder, Hecht and Tilzer, JJ., concur.

Ordered accordingly.  