Hauenstein v. Fisher

Judgment so far as appealed from reversed on the law and facts, without costs, and judgment modified so as to provide that the defendant is required to make and file a complete accounting of all moneys received by him including ten per cent of his own salary. Certain findings of fact disapproved and reversed. Memorandum: The complaint in this action is for an accounting. The answer demands judgment dismissing the complaint. No affirmative relief is asked for in the answer. The judgment appealed from includes the adjudication of issues not raised in the pleadings or litigated upon the trial. All concur. (The portion of the judgment appealed from grants to plaintiff an option to cancel a contract upon repayment of money received by her, or to require defendant to pay to plaintiff money collected or collectible, but this only on condition that plaintiff turn over a proportionate share of the stock covered by the contract.) Present — Crosby, P. J., Taylor, Dowling, Harris and McCurn, JJ.