Rodriguez v. Rodriguez

Judgment modified by striking therefrom the provision for a money judgment in favor of plaintiff against defendant, and by vacating the money judgment entered on June 21, 1924, in favor of plaintiff and against defendant for $26,696.78, and by providing that the accounting directed by said judgment proceed before a referee to be appointed by the court, with appropriate provisions for report and entering of final judgment upon the coming in of said report, and as so modified the judgment is unanimously affirmed, without costs. The seventh finding of fact of the Special Term is reversed on the facts as contrary to the evidence, and the second conclusion of law is set aside. While the plaintiff made out a ease for an accounting by defendant, the evidence did not warrant the money judgment in favor of plaintiff, directed by the learned trial justice. The statement delivered by defendant to plaintiff of his transactions as the agent of deceased was not sufficient to *834sustain the money judgment without evidence explaining its purport. The summary statement or computation prepared by plaintiff said to be based on defendant’s statement, was improperly admitted in evidence. It contained simply the plaintiff’s conclusions or interpretation of defendant’s statement without evidence of the facts. The exceptions taken to the admission of this evidence and of plaintiff’s statement upon which the judgment is based compel modification so far as the money judgment is concerned. Present — Kelly, P. J., Manning, Kelby, Young and Kapper, JJ. Settle order on notice.