Opinion
February, 1922.
Present — Clarke, P.J., Dowling, Smith, Page and Greenbaum, JJ.
The office furniture which was taken by the defendants was charged to the defendants at $600. It was carried upon the books of the partnership at cost and was thereafter charged off to profit and loss and an entry made on the books of the firm in liquidation on November 1, 1916, charging the furniture and stationery together as an asset in the sum of $600. This was after the termination of the partnership. The cost of the furniture was $4,908.77. Upon the trial before the referee the defendants' counsel stated: "On the little matter of the office furniture I am willing to put it in either by direct payment of one-third of the amount to Mr. Culver, or by having you include the whole amount at cost. We agreed to pay that and we propose to pay it. We do not care whether we pay it as a part of the accounting, or whether we pay it as the performance of a collateral contract." After this statement the plaintiff might well have refrained from offering evidence upon the actual value and this statement should be deemed to be a stipulation as to the amount which should be charged for the office furniture. In the other matters of which complaint is made we agree with the conclusions reached by the learned referee and afterwards approved by the court at Special Term. The judgment should be modified accordingly, and as so modified affirmed, without costs to either party.
Judgment modified as directed in opinion and as so modified affirmed, without costs. Settle order on notice.