Alexander v. Sumner — 5 N.Y. St. Rep. 527

Majority

p. 527

Hannah Alexander, Admx. of William Alexander, deceased, Resp’t v. Emma A. Sumner, Appl’t.^[1]

(Court of Appeals,

Filed January 18, 1887.)

Headnote

Accounting — Reference — Evidence—Improper allowance.

In an action before a referee for money loaned and expended on behalf of defendant, it is error to credit plaintiff with an item which had previously been allowed him as a counter claim in an action wherein he was defendant and the present defendant’s husband was plaintiff.

Appeal from the judgment of the Supreme Court, General Term, Second Department, affirming a judgment entered in Kings county on the report of a referee in favor of plaintiff.

The action was for money loaned and services rendered. The plaintiff admitted certain credits and the defendant alleged that the plaintiff had received conveyances of land which were of value more than sufficient to pay the loans and asked an accounting. The case was sent to a referee and on the trial

p. 528

there was evidence tending to show that an item of $122.50 which was claimed by Alexander as a credit for interest paid on a certain mortgage was also claimed by Alexander the testator as a counter claim and allowed in a previous action brought by P. H. Sumner (the husband of defendant) against him. In stating the account herein the referee credited Alexander with this item.

William W Badger, for appl’t; J. T. Marean, for resp’t.

We think the case shows that the item of 1122.50, with interest from November 19, 1877, credited by the referee to the plaintiff’s intestate, for interest paid by him at that date on the Philips mortgage, was charged and allowed in the prior action brought by the defendant’s husband against, the intestate, as a counter claim in that action. It should not, therefore, have been allowed again in this action. With this exception we think the findings of the referee were justified by the evidence, or, at least, that there was not such an absence of evidence in respect to any of them that this court can interfere with his conclusion. An order should be entered reversing the judgment and directing a new trial, with costs to abide the event, unless the plaintiff stipulates to deduct therefrom the credit of $122.50, and interest, and the costs embraced therein, and to pay the costs of the appeal to this court, in which case the judgment, as modified, is affirmed, without costs to the plaintiff.

All concur.

Judgment affirmed.