
    Clotilde R. Keller and Charles Meyer, as Executors and Trustees under the Last Will and Testament of Adolph Keller, Deceased, Appellants, Respondents, v. Hugo P. Keller, Individually and as Surviving Member of the Firm of L. H. Keller & Co., Composed of Himself and Adolph Keller, Deceased, and also as Executor and Trustee under the Last Will and Testament of Adolph Keller, Deceased, Respondent, Appellant.
    
      Partnership — accounting.
    
    Cross-appeals from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 4th day of August, 1911, upon a decision of the Special Term in an action for an accounting, with notice of an intention by the plaintiff to bring up for review an order entered on the 5th day of September, 1911.
   Per Curiam:

We have carefully considered the voluminous record in this case, and are in the main satisfied with the disposition made by the learned justice at Special Term, and for the reasons given in his careful and painstaking opinion, which meets our approval. We think, however, 'that the judgment should be modified in two respects. First. An item of $10,306.83, which was entered on the books on May 18, 1904, the date of Adolph Keller’s death, as an expense account. The evidence in respect to this item is confused, the defendant himself making three different explanations of it and of the items of which it was composed. In the main the claim is that prior to the year 1902 $17,613.97 was charged as expense to the Keller Jewelry Manufacturing Company, which should have been charged to L. H. Keller & Co.; that at the end of the year 1902 Mr. Adolph Keller told the bookkeeper to take off part of that because it was too much to charge to the Keller Jewelry Manufacturing Company, and in fact it ought not to have been charged anyway; that it was too much to charge back at any one time, but that on December 31, 1902, there was charged back to L. H. Keller & Co. $4,125.04, “and after that'he was supposed to take some part off every year.” As matter of fact, however, no charges were thereafter made in the years 1908 and 1904 until after Adolph Keller’s death, when this lump sum was entered in the books. The explanation is so unsatisfactory and, bearing in mind that the books should have been closed as of the day of Adolph Keller’s death, and that the burden was upon the defendant, we think that the account should have been surcharged with this'amount. Therefore, findings 18 and 19 are amended so that the total amount of the capital should be $97,683.84, making the amount of the capital of the deceased partner of Adolph Keller one-half thereof, $48,816.22, instead of $43,633.50, as found. The sixth conclusion of law should be similarly modified. Second. There should be allowed the interest on the difference between said sum of $48,816.92 and the sum of $35,554.55, the amount stated in the first account rendered by defendant, that is,' on $10,262,07, from May 18, 1904, to the date of the judgment, at four per cent. The reason why interest on the difference found by the court was not .allowed in the judgment was that the defendant claimed that he had overpaid the amount of principal required to be paid in partial payments by the agreement, and that such overpayment should be credited to the interest account. The answer is that the defendant having elected to credit said payments to principal account, and having the right so to do, could not thereafter change that election and credit it to the interest account. When an election has once been made and acted upon, it is too late thereafter to change the application of the payment. The judgment appealed from should be modified as indicated, and as modified affirmed, with costs to the plaintiffs. Present—Ingraham, P. J., McLaughlin, Clarke, Scott and Dowling, JJ. Judgment modified as indicated in opinion, and as modified affirmed, with costs to plaintiffs. Order to be settled on notice.  