Opinion
March, 1933.
Judgment reversed on the law and the facts and a new trial granted, costs to abide the event. There is no decision; therefore, the judgment herein in its present form may not be sustained. (Civ. Prac. Act, §§ 440 and 441; Nelson v. Ryan, 222 App. Div. 754; Samuel v. Bastress, 231 id. 867; appeal dismissed, 256 N.Y. 667.) The plaintiff presented a prima facie case for an accounting if certain of the oral testimony were credited in connection with the documentary proof. The scope of his proof as a basis for an accounting was unduly restricted by the rulings of the trial court. There should be a new trial before another Special Term justice, at which time the credit to be accorded to the testimony may be determined and appropriate findings made. Lazansky, P.J., Kapper, Hagarty, Carswell and Tompkins, JJ., concur.