McBride v. Quinn Burial Co., Inc.

188 N.E. 24, 262 N.Y. 469, 1933 N.Y. LEXIS 988

Opinion

Per Curiam.

The evidence clearly shows receipt by defendant of the sum of $3,000. By reasonable inference the sum of $6,114.42 also was deposited to defendant’s credit, thus making the sum of $9,114.42 which defendant received. There is no proof and no fair inference that $3,847.22, constituting part of the amount for which action is brought, ever was received by defendant. From the sum of $9,114.42 must be deducted the sum of $2,517.04 deposited by defendant to the credit of plaintiff’s intestate and the sum of $4,600, the amount of the mortgage assigned by defendant to her.

The judgment should, therefore, be modified by reducing the recovery to the sum of $1,997.38, with interest thereon from July 7, 1925, and as so modified affirmed, with costs to the appellant in all courts. (See 262 N. Y. 561.)

Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ., concur; Hubbs, J., not sitting.

Judgment accordingly.