Kearney v. J. P. Byrne & Co. , 283 A.D. 855 ( 1954 )

Upon reargument, original decision, filed March 3, 1954, adhered to. Memorandum: Defendant urges on reargument that this court has given credit twice to the plaintiff for the sum of $5,500, and refers to the testimony of plaintiff that of the $6,000, $5,500 “is posted on the Kearney Account Number 2”. An examination of the Exhibit (85) shows that it was so posted, but it appears on the debit side of the account, not on the credit side, consequently defendant’s argument of double credit for this item falls. Neither do we agree that counsel for the plaintiff conceded a failure of proof as to the difference of $5,000 in that account, for which no supporting checks were produced. We think the Exhibit should have been received and the question of its probative value left to the jury as a question of fact. All concur. (Reargument of cross appeals from a judgment for defendant in an action under an employment contract. The order denied a motion for a new trial.) Present — McCum, P. J., Vaughan, Kimball, Piper and Wheeler. JJ. [See ante, pp. 845, 851.]