
    Barcalo Manufacturing Company, Respondent, v. Maldonado & Company, Appellant.
    (Submitted May 4, 1917;
    decided May 15, 1917.)
    
      Barcalo Manfg. Co. v. Maldonado & Co., 163 App. Div. 929, modified.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 9, 1914, affirming -a judgment in favor of plaintiff, entered upon the report of a referee in an action to recover a balance due for goods sold and delivered and to recover money had and received by defendant to the use of the plaintiff. The answer does not deny the receipt of the amount claimed to the use of the plaintiff, but it does deny that by reason of the receipt it became indebted in any sum and alleges that the amount was applied to the use and purposes set forth in the counterclaim for freight, storage, cartage and insurance alleged to have been expended by the defendant in connection with three lots of merchandise consigned by the plaintiff from Buffalo to the defendant in San Francisco in the summer of 1906.
    
      Maurice C. Spratt, Alfred L. Becker and James J. Franc for appellant.
    
      August Becker for respondent.
   Per Curiam.

The referee has made inconsistent findings. He has found that $910.36 represents the plaintiff’ net invoice value of the goods sold from the first consignment and has credited the plaintiff with that amount. By defendant’s ninth request to find, he determined the amount to be $773.60. The defendant, appellant, is entitled to this difference of $136.76, with interest thereon from August 8, 1907, to May 5, 1913, which is $47.18, making a total of $183.94. (Hazard v. Wight, 201 N. Y. 399; Whalen v. Stuart, 194 N. Y. 495, 502.)

The judgment should be modified by deducting the sum of $183.94, and as so modified affirmed, without costs.

Hiscock, Ch. J., Collin, Cardozo, Pound, McLaughlin, Crane and Andrews, JJ. concur.

Judgment accordingly.  