Lawson v. Cirrito

There is no basis upon the evidence for the judgment, as here rendered by the justice; and this does not appear to be a case where the appellate court may properly modify the amount of recovery for the purpose of affirmance, for we are unable to determine to which particular witnesses credit was given upon the trial. A recovery of $214.83, the amount of the note and protest fees, together with two months’ interest, or of such amount less $175, the value of a ring claimed by defendants to have been accepted by plaintiff in part payment, alone could find support upon *258the record. The award of $125.99 is not secundum allegata et probata, and forms no guide whereby this court may find the true intention of the justice’s decision. The action must therefore be sent back for a new. trial, as in Fuld v. Kahn, 4 Misc. Rep. 600, 24 N. Y. Supp. 558. Judgment reversed, and new trial ordered, with costs to appellants, to abide' the event.