Opinion
Argued June 10, 1935
Decided July 11, 1935
Appeal from the Supreme Court, Appellate Division, Fourth Department.
Robert T. Headley for appellant.
Paul Folger for respondents.
No error appears in this record, except the inclusion of interest. The evidence sustains an advancement or ademption but not the theory of a loan. Therefore, interest should not have been included. ( Cole v. Andrews, 83 App. Div. 285; affd., 176 N.Y. 374.)
The order of the Appellate Division and the decree of the Surrogate's Court should be modified in accordance with this memorandum and as so modified affirmed, without costs.
CRANE, Ch. J., LEHMAN, O'BRIEN, HUBBS, LOUGHRAN and FINCH, JJ., concur; CROUCH, J., not sitting.
Ordered accordingly.