Schildkraut v. Paino

238 A.D. 846

Opinion

Judgment reversed on the law and the facts and a new trial granted, costs to abide the event. There is no decision; therefore, the judgment herein in its present form may not be sustained. (Civ. Prac. Act, §§ 440 and 441; Nelson v. Ryan, 222 App. Div. 754; Samuel v. Bastress, 231 id. 867; appeal dismissed, 256 N. Y. 667.) The plaintiff presented a prima facie case for an accounting if certain of the oral testimony were credited in connection with the documentary proof. The scope of his proof as a basis for an accounting was unduly restricted by the rulings of the trial court. There should be a new trial before another Special Term justice, at which time the credit to be accorded to the testimony may be- determined and appropriate findings made. . Lazansky, P. J., Kapper, Hagarty, Carswell and Tompkins, JJ., concur.