
    Thomas P. Reilly, Respondent, v. William H. Hill, Appellant.
   Appeal from judgment of the Supreme Court of Broome county, entered in the office of the clerk thereof upon the decision of a referee. The action is brought upon two causes of action, one to recover for services performed, and the other for materials furnished by the plaintiff to the defendant, extending over a period of time from and including the year 1928 to 1932. The services and materials are claimed to have been furnished in landscaping, beautifying and care of the premises belonging to the defendant. There is substantially no dispute that the services were furnished, the contention of the defendant being that the services were performed and the materials furnished gratuitously, and furthermore, that the plaintiff had been fully paid. On appeal the defendant raises the question that the decision is against the weight of evidence, and that the findings of fact and the questions of law are not justified in the light of the referee’s own decision. Judgment reversed on the law and facts and upon the ground that the damages allowed are excessive, and in the interest of justice, and a new trial granted, with costs to the appellant to abide the event. Hill, P. J., McNamee, Crapser and Bliss, JJ., concur; Rhodes, J., dissents.  