Opinion
February, 1930.
Present — Lazansky, P.J., Hagarty, Carswell, Scudder and Tompkins, JJ.
Order of the Surrogate's Court of Westchester county, in so far as appealed from, unanimously affirmed, with costs to respondent, payable out of the estate, under section 106 of the Civil Practice Act. The manner of arriving at the profit does not rest upon competent common-law proof of the elements essential to the arriving at such a profit by way of computing the amount of the claimant's claim, but such error is not prejudicial or substantial, because having recourse to such proof would result in the allowance of a claim of the same or a greater amount than has been allowed. This is especially so when the amount of the claim is considered in connection with the amount of the estate involved. The elements which the appellant insists should have been evidenced in arriving at a computation would no doubt be offset by competent evidence of the rental value of the property during the nineteen years of ownership and occupancy thereof.