Kelly Asphalt Block Company, Respondent, v. Brooklyn Alcatraz Asphalt Company, Appellant

Kelly Asphalt Block Company, Respondent, v. Brooklyn Alcatraz Asphalt Company, Appellant. [MAJORITY] Upon settlement of the order to be entered upon the decision of this court [See 190 App. Div. 750], it appears that proper computation of interest as between the parties in accordance with the findings made indicates that at the date of the commencement of the action the defendant had paid to plaintiff, or for its account, all sums due, and had in fact made a small overpayment. The referee charged defendant with interest upon the two items disallowed by him as barred by the Statute of Limitations. Under our decision the defendant is entitled to credit for these payments, with interest. These conclusions appear to require a reversal of the judgment and dismissal of the complaint, instead of the modification directed by the court in the decision made. A reargum&it is, therefore, ordered upon this question on March 19,1920, at which time the court wifi also consider plaintiff’s motion for reargument. Present — Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ. [See post, pp. 920, 922.]