Citizens National Bank v. Caldwell

233 A.D. 875

Opinion

Judgment of the County Court of Suffolk county reversed upon the law and a new trial ordered, costs to abide the event. The county judge was without power to make, on November 22, 1930, the findings upon which the judgment appealed from is founded, in view of his having already made findings upon the self-same subject-matter in August of 1929, which findings still persist and have not been utilized as the basis for any judgment other than the one that was vacated on defendant’s motion. Despite the vacating of that judgment the court was without power to make findings inconsistent with those already made. (Monachelli v. Morrisania Dairy Co., Inc., 232 App. Div. 699.) The judgment appealed from is, therefore, irregular and void. Moreover, the second set of findings, particularly the finding with reference to the amount advanced against the $1,000 credit given to Caldwell, is without support in evidence so as to establish plaintiff’s claim to the extent covered by the findings. (Freeport Bank v. Viemeister, 227 App. Div. 457.) Lazansky, P. J., Hagarty, Carswell, Tompkins and Davis, JJ., concur.