Majority
p. 257LAWSON v. CIRRITO et al. (Common Pleas of New York City and County, General Term. August 1, 1894.) Argued before BOOKSTAVEB and BISOHOFF, JJ.
Headnote
Appeal—Decision—Reversal.Where a judgment is not supported by the evidence, but the appellate court cannot determine to what particular witnesses credit was given on the trial, the appellate court cannot modify the judgment for the purpose of affirmance, but must reverse it.
Appeal from ninth district court
Action by Frank Lawson against Giuseppe Cirrito and another on a promissory note. There was a judgment in favor of plaintiff, and defendants appeal. Beversed.
A. C. Fransiola, for appellants.
E. H. Moeran, for respondent.
There is no basis upon the evidence for the judgment, as here rendered by the justice; and this does not appear to be a case where the appellate court may properly modify the amount of recovery for the purpose of affirmance, for we are unable to determine to which particular witnesses credit was given upon the trial. A recovery of $214.83, the amount of the note and protest fees, together with two months’ interest, or of such amount less $175, the value of a ring claimed by defendants to have been accepted by plaintiff in part payment, alone could find support upon
p. 258
the record. The award of $125.99 is not secundum allegata et probata, and forms no guide whereby this court may find the true intention of the justice’s decision. The action must therefore be sent back for a new. trial, as in Fuld v. Kahn, 4 Misc. Rep. 600 , 24 N. Y. Supp. 558 . Judgment reversed, and new trial ordered, with costs to appellants, to abide' the event.
Cases cited
- Fuld v. Kahn 4 Misc. Rep. 600 p. 258