Opinion
March 31, 1952.
Present — Johnston, Acting P.J., Adel, Wenzel, MacCrate and Schmidt, JJ.
In this action by plaintiff against his son-in-law to recover a loan of $3,500, defendant claimed to have given plaintiff $50 a week beginning in or about the summer of 1946 until July 15, 1950, first for the purpose of repaying the loan and second to hold the excess for him, and defendant counterclaimed for the excess, $5,650, as amended at the trial. Defendant appeals from so much of an order as sets aside that part of the verdict which was in his favor in the amount of $5,000 on the counterclaim. Plaintiff appeals from so much of the same order as refused to set aside the remainder of the verdict, which was in favor of defendant with respect to plaintiff's cause of action, and from the judgment dismissing the complaint. Order, insofar as appealed from by the respective parties, modified on the law and the facts by striking out the word "denied" in the first ordering paragraph and by substituting in place thereof the word "granted"; by striking out the third ordering paragraph, and by striking out the words "on the counterclaim" in the fourth ordering paragraph. As thus modified, the order is unanimously affirmed, with costs to abide the event. The judgment is reversed. The multitude of checks made by defendant to his own order and defendant's many monthly bank statements beclouded the simple issue whether defendant in fact made the weekly cash payments. In the interests of justice, a new trial of the entire case should be had. The verdict was contrary to the weight of the credible evidence.