Opinion
February, 1936.
Judgment for plaintiff, in an action to recover on a contract for work, labor and services, reversed on the law, decision of the referee set aside, and case remitted to an official referee for a new trial, with costs to abide the event. Order granting plaintiff's motion for additional allowance reversed on the law, without costs, and motion denied. In our opinion it was incumbent upon the referee to report his disposition of the amount found due both on the claim of the plaintiff and the counterclaim of the defendant, rather than merely to strike a balance as between these respective claims in amounts fixed by him but not disclosed in the decision. ( Pinsker v. Pinsker, 44 App. Div. 501; Cable Flax Mills v. Early, 72 id. 213; La Grange v. Merritt, 88 id. 279.) Upon a new trial, which we deem should be granted, the parties should be of some assistance in determining the issues by eliminating therefrom respective credits as to which there is no dispute, and by specifically pointing out in an orderly and intelligible manner their respective contentions as to the balance of items incident to the installations, to the end that the installations under the various contracts may be shown. Recovery by plaintiff, if any, should bear interest, despite the date of the release running to the assignor, since the claim is disputed on the merits and not simply for the reason that defendant was theretofore unable to determine to whom it should be paid. Hagarty, Carswell, Davis, Johnston and Adel, JJ., concur.