
    Clark R. Griggs, App’lt, v. Melville C. Day et al., Ex’rs, Resp’ts.
    
      (New York Superior Court, General Term,
    
    
      Filed January 5, 1891.)
    
    Accounting—New trial.
    Plaintiff, a contractor, assigned to defendant as collateral for advances certain bonds and notes received in payment for the work. Some of these defendant exchanged for second mortgage bonds of the company, for which this court held, in an action for an accounting, that plaintiff was entitled to credit, and ordered a new trial unless defendants consented to reduce the judgment by that amount. It now being claimed that defendants were entitled to a corresponding credit for the notes not paid by said bonds, a new trial is unconditionally ordered.
    Settlement of order. For opinion on the hearing, see 34 N. Y. State Rep., 155.
    
      Robert G. Lngersoll, for app’lt; MelviRe 0. Bay, for resp’ts.
   Freedman, J.

The court, for the reasons stated by the chief judge in his opinion, came to the conclusion that the judgment should be reversed and a new trial had. At the time of the announcement of the decision it was thought, however, that perhaps a new trial could be obviated, if the defendants were to give a stipulation consenting to a reduction of the amount of the judgment recovered by them against the plaintiff in accordance with the principles laid down in the opinion, and a suggestion was made to that effect. Having now heal’d counsel on the settlement of the order to be entered, and it being conceded by both sides that .under the said opinion the plaintiff is entitled to a credit of $1,736,600, with interest from May 1, 1883, to the date of the referee’s report, but the respondent being unwilling to consent to such determination unless they receive a corresponding credit of $325,262.66 for the notes not paid by second mortgage bonds, and this new difference between the parties being of such a nature as to make it proper, in view of the complicated state of the accounts, that they should have a further hearing concerning it upon a new trial, I am of the opinion that the order to be entered should provide for the unconditional reversal of the judgment upon the facts as well as the law and for a new trial in accordance with the principles laid down in the opinion.

Sedgwick, Oh. J., and Ingraham, J., concur.  