Opinion
November 15, 1943.
Present — Close, P.J., Hagarty, Carswell, Johnston and Adel, JJ.
In this action for an accounting, judgment was entered in favor of plaintiff. The judgment directed, inter alia, that plaintiff have judgment for $189,765.81 against the defendants individually and as liquidating directors and trustees of the Phillipsburgh Construction Company, and for $102,993.94 against the defendant Achille O. Van Suetendael. In arriving at the former amount, the learned Official Referee allowed defendants credit for $52,850, representing one half of the total of eleven separate items enumerated in the decision but did not allow offsetting interest. These items may be divided into two categories: First, those where the payments were made on specified dates; and second, those where the exact dates of the payments do not appear. As to the first group, interest should be calculated from the date when the payments were made to the date of the decision. As to the second group, it appears that some of the payments were made in 1926 and others in 1929 and 1936. As defendants were trustees and are wrongdoers, every doubt should be resolved against them ( Michel Cosmetics, Inc., v. Tsirkas, 282 N.Y. 195, 203) and, therefore, interest should be calculated from the 31st day of December in the year when the payments were made to the date of the decision. The judgment is modified on the law and the facts so as to include offsetting interest on the credits. As so modified, the judgment is unanimously affirmed, without costs. Findings and conclusions inconsistent herewith are reversed and new findings and conclusions will be made. Settle order on notice within ten days from the date of this decision.