Korn v. Freedlander — 166 A.D. 686

Majority

p. 686

Louis Korn, Respondent, v. Joseph H. Freedlander, Appellant.

First Department,

March 12, 1915.

Headnote

Judgment—reduction of judgment by consent of plaintiff to avoid new trial — appeal by defendant — reduction not ground for reversal.

Where the court decides that a new trial is necessary unless the plaintiff stipulates to reduce his recovery to a certain amount, and the plaintiff consents to such reduction, the defendant cannot maintain upon a further appeal that the court had no power to reduce the judgment, as a ground for a reversal of the plaintiff’s judgment. The reduction of the original judgment, which could only be made on the consent of the plaintiff, merely relieved the defendant of a judgment for a larger amount.

p. 687

Motion by plaintiff to amend or resettle order and judgment of this court on an appeal from a judgment entered upon a verdict of a jury in favor of the plaintiff and from an order denying defendant’s motion for a new trial, and to amend or resettle an order of this coiirt on an appeal herein from an order of the Special Term denying defendant’s motion to vacate the judgment and for a new trial on the ground, among others, of the failure of the defendant to plead and prove his expenses incident to earning the commissions for the recovery of one-half of which this action was brought.

Max D. Steuer, for the motion.

Einstein, Townsend & Guiterman, opposed.

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 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

p. 688

ment it would have been affirmed for the full amount. The cases cited by the appellant are cases in which the party against whom the reduction was made had appealed. We recognize that against the plaintiff we would have no power to reduce the judgment, and if he objected all the court could do would be to order a new trial. He consented to the reduction and it was on his consent that the defendant was relieved of a considera - ble portion of the judgment. The plaintiff, who has recovered judgment against the defendant, on appeal to the appellate court voluntarily consents that a certain sum be deducted from his recovery, and if the court accepts the stipulation reducing the amount of the judgment, certainly it does not lie with the defendant to attempt to reverse the recovery against him upon the ground that the plaintiff has voluntarily abandoned part of his recovery. The modification was entered upon the consent of the plaintiff. The plaintiff has not appealed; he seeks to sustain the judgment as modified, and it would seem to be no concern of the defendant’s whether or not the court would have had power to modify the judgment against the objection of the plaintiff.

The application to resettle the order is, therefore, denied,' without costs.

Present — Clarke, Laughlin, Scott, Dowling and Hotchkiss, JJ.

Motion denied, without costs.