Lally v. Cronen — 221 A.D. 751

Majority

p. 751

Second Department,

June, 1927.

Lavinia Lally, Respondent, v. Emilie L. Cronen, Individually and as Executrix, etc., of Catharine M. Lally, Deceased, Appellant, Impleaded with The Brooklyn Savings Bank and Others, Defendants.

Headnote

Executors and administrators — accounting between parties ■—• Appellate Division cannot from record make findings — upon reargument judgment is affirmed.

Reargument of appeal upon defendant’s application for a modification of the order of affirmance of a judgment of the Supreme Court in favor of the plaintiff, entered in the Kings county clerk’s office on April 22, 1926, upon the decision of the court rendered after a trial at Kings Special Term, so as to provide for an accounting between the' parties to determine the property to be divided and the value thereof. (See 220 App. Div. 253 ; Id. 770; Id. 778.)

Reargument of the appeal in this case was ordered solely upon the question whether this court should modify the decree so as to provide for an accounting between the parties. While we are of opinion that some of the expenditures made by defendant might properly be divided between the litigants, this matter was not presented to the trial court, the defendant made no requests to find nor were any findings made by the trial justice. In the state of the record as it comes to this court, we are unable to make any findings upon the subject or to make any order d'recting an accounting. The defendant may, if so advised, apply to the trial justice at the foot of the judgment for further relief. Upon reargument, the judgment appealed from is affirmed as directed in the order made upon the original argument. Present — Kelly, P. J., Manning, Young and Hagarty, JJ. Upon reargument, the judgment appealed from is unanimously affirmed, as directed in the order made upon the original argument.