In re Prime

254 A.D. 685, 3 N.Y.S.2d 414, 1938 N.Y. App. Div. LEXIS 7138

Opinion

Cross-appeals from a decree in an action for an accounting. Decree modified by striking out the amount of the additional allowance and as thus modified unanimously affirmed, without costs. This was not a difficult or extraordinary ease within the meaning of section 1513 of the Civil Practice Act. Matters of record not presented upon the trial may be received and considered only on an appeal to sustain a judgment. They may not be considered to reverse a judgment. (Day v. Town of New Lots, 107 N. Y. 148.) Even though they were considered in this case, no different result would ensue. Proposed finding No. 24, inadvertently found by the referee, is reversed as inconsistent with the decision. Conclusion of law No. 10 is modified by striking out additional allowance of $500. Present — Lazansky, P. J., Carswell, Davis, Adel and Close, JJ.