Milton R. Raphael, Respondent, v. Williamson Candy Co., Inc., Appellant

Milton R. Raphael, Respondent, v. Williamson Candy Co., Inc., Appellant. [MAJORITY] Judgment reversed on the facts, and new trial granted, with costs to appellant to abide the event, unless within twenty days from entry of the order herein plaintiff stipulate to reduce the recovery of damages to $413.26, in which event the judgment as so modified is affirmed, without costs. The uncontradicted proof shows that all of the husband’s earnings were deposited by the wife in the Kings County Trust Company. The only other moneys deposited by her in that account were those received from her mother’s estate. An analysis of the figures shows that the jury failed to credit the sum of $1,684.74, amounts earned by plaintiff over and above the $692, the amount allowed as earned. The verdict of the jury indicates an allowance of forty weeks’ salary amounting to $2,800, less $692, or $2,108. The finding of the jury that plaintiff had only earned $692 was against the weight of the evidence. Kelly, P. J., Manning, Young and Lazansky, JJ., concur; Kapper, J., dissents.