Appellate Division of the Supreme Court of New York, 1948

Smith v. Walrath

Smith v. Walrath
Appellate Division of the Supreme Court of New York · Decided May 26, 1948
273 A.D. 1058; 80 N.Y.S.2d 658; 1948 N.Y. App. Div. LEXIS 5965
Smith v. Walrath

Opinion of the Court

Judgment reversed on the facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: It does not clearly appear from the record whether defendant paid plaintiff his share of the check of $197.89-for October milk; or what part of the bonus of $206.80 should be applied to the months of September and October; or whether the tax bill of $329.81 was for 1945 or 1946 taxes. In view of the lack of proof upon these items, the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event. All concur. (The judgment is for defendant in an action in accounting.) Present — Taylor, P. J., McCurn, Love, Vaughan and Kimball, JJ.

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