Opinion
June 24, 1963
In an action for an accounting and for other relief, defendant appeals from a judgment of the Supreme Court, Kings County, entered June 14, 1962 after trial before an Official Referee, upon his oral decision, in favor of plaintiff for $6,469.25. Judgment reversed on the law and a new hearing ordered, with costs to abide the event. In our opinion the superseding account, dated May 23, 1962, rendered by defendant, was in compliance with the requirements of rule 174 of the Rules of Civil Practice (cf. Adelson v. Dreyman, 274 App. Div. 605; Borenstein v. Borenstein, 258 App. Div. 55). It was, therefore, error for the learned Official Referee to have dismissed such account. Plaintiff should be given an opportunity to file specific objections thereto, as provided in the rule; and he should be permitted to examine all books and records of original entry and such other documentary evidence as he may deem necessary to enable him properly to file his objections and to examine the defendant with reference thereto. With respect to the issue of whether the $5,000 allegedly advanced by the plaintiff was a loan (as he claims) or a capital investment (as defendant claims), in our opinion such issue is to be decided by the trier of the facts. Beldock, P.J., Ughetta, Christ, Hill and Rabin, JJ., concur.