
    Frank Lawson, Respondent, v. Giuseppe Cirrito et al., Appellants.
    Appeal from a judgment of the District Court in the city of New York for the ninth judicial district.
    Action upon a promissory note.
    
      A. C. Fransiola, for appellants.
    
      E. H. Moeran, for respondent.
   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 defendants to have been accepted by plaintiff in part payment, alone could find support upon the record.

The award of $125.99 is not seewndum 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 Fuld v. Kahn, 4 Misc. Rep. 600.

The judgment should be reversed and new trial ordered, with costs to appellants to abide the event.

Present: Bookstaver and Bischoff, JJ.

Judgment reversed, new trial ordered, with costs to appellants to abide event.  