
    Nellie A. Tufts, Doing Business as E. M. Tufts Canning Co., Respondent, v. H. V. Stolz, Doing Business as The Williamson Canning Co., Appellant.
   Appeal by defendant from the following described order, judgment, decision and report: (1) Order of Hon. B. L. Newman, Justice of the Supreme Court, made May 10, 1946, and entered in the Madison County Clerk’s Office May 17, 1946; (2) Judgment signed by the Deputy County Clerk of Madison County May 17, 1946, and entered in said clerk’s office on that day, which judgment purports to have been entered pursuant to the above-described order of Justice Newman; (3) The decision and report of Hon. Albert E. Campbell, Referee, dated January 19> 1946. This matter was before the court on a previous occasion. There was an affirmance of the judgment rendered after a trial by the court without a jury. Judgment was entered January 5, 1944. The case is reported in 268 Appellate Division 1017. A reference was granted by Justice Personius, appointing a referee to ascertain the amount to be paid by each party. The court directed judgment in favor of the plaintiff for the sum of $18,080.27, and interest from January 19, 1946, the date of the report of the referee. The annual rental provided for by the terms of the lease was $1,140.43, in addition to current interest on mortgages, taxes and upkeep. The plaintiff was deprived of the property as a canning factory for the years 1942, 1943, 1944 and 1945, amounting to $4,561.72. Interest on annual rentals for the period during which such rentals remained unpaid to the date of the report $424.27. Difference in the value of the property as it existed on June 1, 1941, and as it existed after the buildings had been demolished and personal property taken away $3,500; amounting in all to $8,435.99. Judgment modified on the law and facts by substituting the sum of $8,485.99 for the sum of $18,080.27, and as so modified affirmed, with costs. Hül, P. J., Heffernan and Lawrence, JJ., concur; Brewster, J., dissents, in the following memorandum: I feel there is ample evidence in support of the referee’s findings and report as to the rental value item in plaintiff’s damages. Plaintiff’s witnesses placed them much higher. The rent reserved in the early part of 1941 for that year is not determinative of the rental value of the canning factory in war years following. Foster, J., taking no part. [See post, p. 1040.]  