Opinion
November 8, 1982
In a partition action, the parties cross-appeal from a judgment of the Supreme Court, Kings County (Multer, R.), dated August 27, 1981, which, after settling the accounts of the parties, distributed the proceeds from the sale of the property. Judgment reversed, without costs or disbursements, and the matter is remitted to the referee for further proceedings consistent herewith. On the prior appeal before this court ( Hauck v. Hauck, 80 A.D.2d 842, 843) we determined, inter alia, that: "the Referee erred in attributing to defendant rental income of both $20,200 and $8,775 from the same apartment. Defendant asserted in his schedule that between August 24, 1964 and April 30, 1974 he had collected $75 per month from the occupants of the third floor apartment, totaling $8,775; plaintiff objected, contending that the monthly rent for the apartment had been $200 between the former date and December 31, 1972. It appears, however, that the Referee neglected to resolve this conflict and attributed both amounts to defendant in settling the parties' accounts. The matter is remitted to the Referee to resolve the conflict and redetermine the distribution of proceeds." Upon remand, the referee resolved this issue in favor of the plaintiff, but erroneously attributed to defendant rental income of $30,895. This sum represents $1,920, $20,200 and $8,775, the latter two of which were previously determined to be duplicative. As the referee credited plaintiff's testimony that defendant collected $20,200 instead of $8,775 for the period in question, only $22,120 (representing $20,200 plus $1,920 for the second floor apartment) should be attributed to defendant. The matter is remitted to the referee to redetermine the distribution of the proceeds accordingly. The issues sought to be raised by plaintiff on this appeal were determined by this court's prior order (see Hauck v. Hauck, supra). Mangano, J.P., Gibbons, Gulotta and Thompson, JJ., concur.