
    Frank Lawson, Resp’t, v. Giuseppe Cirrito et al., App’lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed August 1, 1894.)
    
    Appeal —Modification of judgment.
    The appellate court cannot modify the amount of recovery for the purpose of affirmance, where it is unable to determine to which witnesses credit was given upon the trial.
    Appeal from a judgment in the district court in the city of New York for the ninth judicial district. Action upon a promissory note.
    
      A. C. Fransiola, for app’lts; E. II. Moeran, for resp’t.
   Per Curiam.

There is no basis upon the evidence for the judgment as here rendered by the justice, and this does not appear to be a case where the appellate court may properly modify the amount of recovery for the purpose of affirmance, for we are unable to determine to which particular witnesses credit was given upon the trial. A recovery of $214.83, the amount of the note and protest fees, together with two months interest, or of such amount less $175, the value of a ring claimed by defendant to have been accepted by plaintiff in part payment, alone could find support upon the record. The award of $125.99 is not secundum allegata et probata and forms no guide whereby this court may find the true intention of the justice’s decision. The action must, therefore, be sent back for a new trial, as in Field v. Kahn, 4 Misc. R. 600.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.  