| N.Y. App. Div. | Mar 12, 1915
The defendant appealed from a judgment in favor of the plaintiff and from an order denying a motion on the minutes for a new trial, and also from a separate order denying a motion to vacate the judgment and grant a new trial. These appeals were heard together on separate records. The record of the trial disclosed no reversible error, but in view of the facts shown by the other record on the motion to vacate the judgment, we were of opinion that the defendant was entitled to a deduction from the gross commissions earned of certain items of expenses incident to earning them, aggregating approximately $6,250, and that, therefore, in justice, there should be a new trial unless plaintiff would stipulate to reduce by one-half of that amount the verdict that he had recovered.
The court, therefore, stated in announcing its decision that a new trial would be ordered unless the plaintiff should stipulate to reduce the recovery by said amount, in which event the judgment was modified accordingly, and, as modified, affirmed, without costs. (156 A.D. 901" court="N.Y. App. Div." date_filed="1913-04-15" href="https://app.midpage.ai/document/korn-v-freedlander-5228708?utm_source=webapp" opinion_id="5228708">156 App. Div. 901). The plaintiff consented to reduce the recovery, and the judgment was, therefore, modified in accordance with the stipulation and affirmed as so modified. The defendant then appealed to the Court of Appeals and has made the point in that court that this court had no power to reduce the judgment. It is difficult to see how the defendant can raise that question. If we had no power to reduce the judg
The application to resettle the order is, therefore, denied,' without costs.
Present — Clarke, Laughlin, Scott, Dowling and Hotchkiss, JJ.
Motion denied, without costs.