
    MARKS et al. v. APPELBAUM.
    (Supreme Court, Appellate Term.
    February 23, 1905.)
    Contracts—Services—Damages.
    Where defendant promised that, if plaintiffs would raise money to pay off a third mortgage owned by defendant and covering the premises owned by plaintiffs, defendant would pay the expenses of procuring such loan, not exceeding $100, and the new mortgagee testified that the expenses amounted to $80, defendant’s liability was limited to that sum.
    Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.
    
      Action by Isaac Marks and Barnett Press against Morris Appelbaum. From a judgment in favor of plaintiffs, defendant appeals. Modified.
    Argued before SCOTT, GIEGERICH, and McCALL, JJ.
    H. B. Davis, for appellant.
    Herman S. Fried, for respondents.
   PER CURIAM.

If we assume, as we must, that the trial judge believed the testimony offered on the part of the plaintiffs, the only liability cast upon the defendant was that imposed by his promise made to the plaintiffs that, if they would raise the money to pay off a third mortgage, amounting to the sum of $600, owned by the defendant, and covering premises owned by the plaintiffs, that he (defendant) would pay the expenses of procuring such loan, not exceeding the sum of $100. The plaintiffs procured such loan, and paid defendant’s mortgage. The new mortgagee testified without objection that the expenses of obtaining such loan was $80. As the defendant only obligated himself to pay the expense of procuring the loan, the judgment should have been for the sum of $80 only.

Judgment modified by reducing the amount of recovery to the sum of $80 and costs, based upon that recovery in the court below, but without costs to either party of this appeal.  