
    BUSHBY, Respondent, v. BERKELEY, Appellant.
    (No. 6548.)
    (Supreme Court, Appellate Division, First Department.
    December 31, 1914.)
    Appeal from Judgment on Report of Referee. Action by James C. Bushby against Lancelot M. Berkeley. From a final judgment for the plaintiff, confirming the report of a referee, defendant appeals. Modified and affirmed. See, also, 149 N. Y. Supp. 1073. L. M. Berkeley, of New York City, for appellant. Max D. Steuer, of New York City, for respondent.
   PER CURIAM.

An examination of the record clearly shows that the defendant is not entitled to an offset in what is termed the Puckhafer item. He refused to recognize the authority of the plaintiff to satisfy that claim, and proceeded to enforce it against the railroad company, recovering a judgment, which

was subsequently affirmed by the Court of Appeals. "Nor is there any basis for an offset in what is known as the Foster No. 2 item. The referee so found, and there is an abundance of evidence to sustain his finding. On an appeal by the plaintiff this court modified the judgment, by allowing him interest on the amount found due from the defendant. Bushby v. Berkeley, 160 App. Div. 916, 145 N. Y. Supp. 1115. The same rule should be applied to the defendant, and he should be allowed interest on $529.09, given to him as an offset in the final judgment. The interest on this sum amounts to $214.28. The judgment appealed from, therefore, should be modified accordingly, and, as so modified, affirmed, without costs to either party in this court.  