
    WALSH v. CAMPBELL.
    (Supreme Court, Appellate Division, First Department.
    March 6, 1896.)
    On motion for reargument. Denied.
    For prior report, see 37 N. Y. Supp. 362.
    Argued before VAN BRUNT, P. J., and BARRETT, WILLIAMS. PATTERSON, and O’BRIEN, JJ.
    James P. Campbell, for the motion.
    John Jeroloman, opposed.
   PER CURIAM.

Soihe confusion is created in marshaling the different payments by reason of the plaintiff having credited on account of the contract one payment of $300 which should have been credited on account of extra work, because the receipt itself states that it was a payment on account of such .extra work. The result, however, is in nowise changed; for, if we credit it, as it should have been, to extra work, it would make a payment of $300 less on account of the contract, so that the balance due on the contract, instead of being $72.94, should have been $372.94. And although the plaintiff states that but $72.94 was due on the contract, it was entirely proper for the referee, in reaching a conclusion as to the true state of the accounts between the parties, to adjust them as the figures warranted. If, therefore, we restate the account as it should have been presented by the plaintiff, and give credits to the accounts upon which payments were made, we reach the same result, because it is conceded that the contract price was $18,000, and the extra work performed amounted to $560.99, making a total of $18,560.99. There were, in all, eleven receipts, one of which was for $300 on account of extra work; and of the other ten receipts, one, which stated that it was a payment of $300 on account of contract, was properly held, by the referee, to be for money that had been given to plaintiff to pay taxes, and for which, therefore, the defendant was not entitled to a credit. If, therefore, we deduct the amount of the remaining nine receipts, $17,627.06, paid on account of the contract, from $18,000, the contract price, it leaves a balance of $372.94; and if, then, we deduct the $300 paid on extra work from $560.99, the value of such extra work, it leaves a balance due on that account of $260.99. Adding together these two amounts, $372.94 (due on the contract) and $260.99 (balance for extra work), we have $633.93, the amount of plaintiff’s claim allowed by the referee. If we state it in another form, we reach the

same result, thus:

If it would serve to clear the matter in the appellant’s mind, we think that the respondent correctly summarizes it in his argument by saying it is as broad as it is long, whether the amount of the receipt is deducted from the additional and extra work of $560.99, or from the contract price of $18,000; for, if deducted from the contract price, it would leave due on the contract $372.94, instead of $72.94. Add to the figures, $372.94, the sum of $260.99, the balance unpaid on the extra and additional work (if the amount of receipt of March 12, 1886, was deducted from said additional and extra work of $560.99), would still leave the balance due plaintiff the same, viz. $633.93.

The motion should therefore be denied, with $10 costs.  