
    Louis B. Hasbrouck, as Receiver of the Property of Charles B. Castle, Respondent, v. William L. Marks, Appellant.
    
      Extra allowance — on a partnership accounting it must he hosed upon the plaintiff’s interest in the assets.
    
    An extra allowance, granted to the plaintiff in an action for an accounting as to the affairs of a partnership, should not be computed upon the total assets of the partnership but only upon the proportion thereof to which the plaintiff was entitled.
    Appeal by the defendant, William L. Marks, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of August, 1900, upon the report of a referee, and' also from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of August, 1900, granting to the plaintiff an extra allowance of costs.
    
      Emammel J. Myers, for the appellant.
    
      Louis Marshall, for the respondent.
   O’Brien, J.:

This action was before this court under the title of Castle v. Marks (50 App. Div. 320) on an appeal from an interlocutory judgment, and we then held that not only was the plaintiff entitled to an accounting as to the partnership affairs of the M. Powers Company, but that two certain contracts which the defendant claimed individually, were the property of the firm, and, together with the other assets, should be included in the accounting. Although we are invited to reconsider our decision rendered upon that appeal, we are not disposed to do so for the reason that we think all the questions involved were there correctly passed upon and that the conclusion then reached must be regarded as the law of the case.

On this appeal, however, we are called upon to make certain modifications in the judgment as finally entered. The plaintiff’s interest in the firm was one-fourth while that of the defendant was three-fourths; but in apportioning the amount due on the accounting to the plaintiff, the referee, by not keeping these respective interests in mind, fell into errors in the calculation, which should be corrected. According to the referee, we have the following presentation :

Collected by the defendant, $21,160.81, of which plaintiff’s share is one-fourth, or........................ $5,290 20
Collected by defendant from Yorhees Co............ 214 95
Chargeable against defendant by Schedule C........•. 182 13
$5,687 28
Interest as per Schedules A and B.................. 740 50
Total due plaintiff... /........................ $6,427 78

The appellant points ont that the interest as per Schedules A and B was the interest on the total of $21,160.81, of which the plaintiff was entitled to only one-fourth, or $5,290.20, and, consequently, to only one-fourth of the interest. The criticism is just and the interest, credited should be $185.12 instead of $740.50. It further appears that the plaintiff was credited with the total amount'collected by the defendant from the Yorhees Company, or $214.95, whereas he was entitled to only one-fourth thereof, or $53.74. And the appellant calls attention to the testimony of the plaintiff that he had collected and received $40 from the Yorhees Company (to which he was entitled to only one-fourth, of $10), and this was wrongly charged up in the Powers Company account. With these corrections the statement would be as follows:

Collected by the defendant, $21,160.81, of which plaintiff’s share is one-fourth, or.................,.... .$5,290 20
Collected by defendant from Yoorhees Co., $214.95, of which plaintiff’s share is one-fourth, or............ 53 74:
Chargeable against the defendant by . Schedule C...... 182 IS
$5,526 07
Interest as per Schedules A and B, $740.50, of which plaintiff’s share is one-fourth, or.................. 185 12
Total.........'............................ $5,71119
Deduct three-fourths of $40 collected by the plaintiff and mischarged................................ 30 00
Total due plaintiff............................ $5,681 19

A reduction should also be made in the extra allowance granted, which was $1,000. Since the maximum amount allowed by the Code is five per cent, the basis must in this instance have been upwards of $20,000. In other words, the allowance was evidently calculated upon the total assets of the firm, although the plaintiff was entitled to only one-fourth thereof, and upon this proportion alone his allowance should be based. The allowance granted, therefore, should be reduced ; and, taking the sum to which the plaintiff is entitled as above found, $5,681.19, it should be five per cent thereof, or $284.06.

The judgment and order accordingly should be modified by reducing the amount to which the plaintiff is entitled to $5,681.19, and the extra allowance to $284.06, and, as so modified, affirmed,, without costs.

Van Brunt, B. J., Bumsey, Ingraham and Hatch, JJ., . concurred.

Judgment and order modified as directed in opinion, and, as modified, affirmed, without costs.  