Spoar v. McCaghey , 1 N.Y.S.2d 327 ( 1937 )

Judgment reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: We find error in the amount included in the judgment in favor of the plaintiff and against the defendant. The principal sum demanded in the complaint was $925.52, while in the judgment it was erroneously computed at $958.90. There are errors in the dates from which interest was allowed. In respect to the first cause of action, interest on $696.50 should have been allowed from March 22, 1927; on the second cause of action, on $132.77 from June 18, 1928, and on the third cause of action on $96.25 from May 14, 1931, maldng a total of principal and interest to the date of the judgment of $1,399.03, instead of $1,482.78. We would modify the judgment so as to make these corrections and affirm it, were it not for the fact that we reach the conclusion that the findings from 39 to 47 are against the weight of the evidence in determining that the receipt of the grant of 31.64 acres as specified in finding numbered 32 was not a secret profit. As we cannot accurately compute the amount due from the plaintiff to the defendant because of such secret profit, we must remit the entire case for retrial. All concur, except Taylor, J., who dissents and votes for affirmance. (The judgment is for plaintiff in an action for moneys had and received.) Present —• Sears, P. J., Edgcomb, Crosby, Lewis and Taylor, JJ.