
    Mme. Frances, Inc., Appellant, v. Alice Joyce Regan, Respondent.
    First Department,
    May 29, 1931.
    
      I. Maurice Wormser of counsel [Hyman Turchin, attorney], for the appellant.
    
      John Kirkland Clark of counsel [Ganson J. Baldwin with him on the brief; Garfield & Seligson, attorneys], for the respondent.
   Sherman, J.

The plaintiff’s cause of action was conceded at trial which proceeded before the court without a jury upon the usual stipulation. Defendant recovered upon her counterclaim and the amount concededly due plaintiff has been deducted in the judgment. Defendant had stored her furs and wraps with plaintiff under a written agreement evidenced by a storage receipt wherein her furo and wraps were valued at $24,000. The plaintiff pleaded that it was entitled to storage charges of $480, which was two per cent of the agreed valuation as provided by that receipt.

The answer asked affirmative judgment in the sum of $20,000, after the deduction of plaintiff’s claim. It inadvertently pleaded the value of the furs and wraps at $20,000, instead of $24,000, their agreed value. The learned trial court after allowing plaintiff’s claim in full deducted the amount thereof from the valuation of the furs and wraps, to wit, $24,000. Upon this appeal plaintiff claims that the maximum which defendant under her counterclaim was entitled to recover was $20,000, and that accordingly the judgment should be modified by deducting therefrom $4,000. The record shows that, at trial, defendant asserted that the fur coats and wraps were valued at $24,000, and that sum was used whenever the question of value was discussed. No proof was offered on the question of value. The smaller figure mentioned in the answer was overlooked and ignored. No point was made at trial that the defendant had limited herself in the counterclaim to a valuation of only $20,000. That point is first advanced upon this appeal.

The judgment as entered being in the sum of $17,316.69 is consistent with the demand of the amended answer which was for an affirmative judgment against plaintiff in the sum of $20,000, remaining after allowance and deduction of the amount due to plaintiff.

Accordingly the answer will be deemed amended and made to conform to the proof.

The judgment so far as appealed from should be affirmed, with costs.

Finch, P. J., Meerell, McAvoy and Martin, JJ., concur.

Judgment so far as appealed from affirmed, with costs.  