Smith v. Walrath , 273 A.D. 1058 ( 1948 )

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.