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in the section as above quoted. It is conceded by appellant's counsel that, had the section remained in its original form without amendment, notice of trial of the issue raised by the demurrer could properly have been given for the term at which it was heard. Kissam v. Bremmerman, 27 Misc. Rep. 14, 57 N. Y. Supp. 890. But he insists that, as there was a Special Term distinct from the Trial Terms of the Supreme Court appointed to be held in Yates county, at which such an issue might be tried, the section as amended does not permit such an issue to be noticed for trial at a term held elsewhere than in that county. This does not seem to be the effect of the amendment. Its interpolation in the section of the disjunctive clause "or an issue of fact triable by the court without a jury, arising in a county where no Special Terms distinct from Trial Terms are appointed to be held for trial of such cases,” does not appear to be designed to change or limit the theretofore existing right of trial of an issue of law in any county in the same judicial district with that in which the venue of the action was laid. Its effect is rather to add the further right to try issues of fact in another county in the same district, provided there was not appointed to be held in the county where the action was triable a Special Term, distinct from Trial Terms, for the trial of issues of fact; the restrictive expression used in the amendment, "arising in a county where no Special Terms distinct from Trial Terms are appointed to be held for the trial of such cases," relating back and referring only to the antecedent nominative of the added clause of which it forms a part—that is, cases in which an issue of fact triable by the court without a jury is presented. Giving to the amendment this construction avoids the result of changing a longestablished rule of practice, a result which it will not be presumed was intended by the enactment.

The order appealed from should be affirmed, with $10 costs and disbursements. This disposition of the order leaves the order overruling the demurrer, the interlocutory judgment entered thereon, as well as the final judgment from which an appeal is also taken, as granted and entered on defendant's default. No appeal from a judgment can be taken by the party on whose default it was made. Section 1294, Code Civ. Proc.

The appeal from the judgment should therefore be dismissed.

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PEOPLE ex rel. TINTON BLDG. CORPORATION v. GANLY, County Clerk.

(No. 6883.) (Supreme Court, Appellate Division, First Department. March 12, 1915.) INTERNAL REVENUE 19-STAMP TAX-TRANSCRIPT OF JUDGMENT.

A transcript of a judgment of the Municipal Court of the City of New York is not required to be stamped, etc., by Revenue Act U. S. Oct. 22, 1914, c. 331, § 5, 38 Stat. 753, imposing a stamp tax on bonds, debentures, certificates of stock, and other matters and things, before the same can be filed by the county clerk.

(Ed. Note.-For other cases, see Internal Revenue, Cent. Dig. 88 39–44; Dec. Dig. 19.) wFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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Appeal from Special Term, New York County.

Action by the People, on the relation of the Tinton Building Corporation, against James V. Ganly, as Clerk of Bronx County. From an order denying a motion for a writ of mandamus, plaintiff appeals. Reversed, and motion granted.

Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ.

George D. Carrington, of New York City, for appellant.

PER CURIAM. This appeal is from an order denying a motion for a writ of mandamus directing the clerk of Bronx county to receive and file in his office a transcript of judgment issued out of the Municipal Court of the City of New York. The transcript was correct in form, and the respondent refused to receive or file the same solely on the ground that the 10-cent stamp Tequired by section 5, Schedule A, of the United States Revenue Act of October 22, 1914 (38 Stat. 753, c. 331), had not been affixed thereto and canceled.

We are of the opinion that the transcript of the judgment referred to does not come within the provisions of the act, and therefore a stamp tax is not required to be affixed thereto and canceled before the same can be filed in the county clerk's office. Such transcript is a necessary part of a court proceeding, and its filing in the county clerk's office is a step to effectuate and enforce the judgment in the county of the Bronx.

The construction thus given to the statute is the one placed upon it by the collector of the Fourteenth district of New York (see New York Law Journal, Saturday, February 6, 1915); also by the Commissioner of Internal Revenue (see circular, December 11, 1914, T. D. 2087). This, however, was not the position taken by the relator at the time the transcript was presented to the respondent. He then conceded, as he does in the brief presented on this appeal, that the transcript was a certificate within the meaning of the federal act, but that act, in so far as it required a stamp to be affixed and canceled upon such certificate, was unconstitutional.

Under such circumstances, while we think the order should be reversed, and the motion granted, it should be without costs.

The order appealed from, therefore, is reversed, and the motion granted, without costs to either party.

KORN V. FREEDLANDER. (No. 32.) (Supreme Court, Appellate Division, First Department, March 12, 1915.) 1. APPEAL AND ERROR 1151 — DISPOSITION REDUCTION OF AMOUNT OF

JUDGMENT.

The Appellate Division has no power to reduce the amount of a judg. ment, if the party plaintiff holding the judgment objects, in which case it can only order a new trial.

(Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4498– 4506; Dec. Dig. 1151.)

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

OWLING,

2. APPEAL AND ERROR 1151-JUDGMENT ON APPEAL_AMENDMENT OR RE

SETTLEMENT.

Where plaintiff, on defendant's appeal, consented to reduce the amount of the judgment, and judgment was modified accordingly and affirmed, the defendant had no right to attempt to reverse the recovery against him on the ground of plaintiff's voluntary reduction as to part thereof.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $$ 4498– 4506; Dec. Dig. ww1151.] Action by Louis Korn against Joseph H. Freedlander. Judgment for plaintiff was affirmed on defendant's appeal, on condition that plaintiff remit part of his recovery. On motion by plaintiff to amend or resettle orders and judgment of Appellate Division. Motion denied.

See, also, 156 App. Div. 901, 938, 141 N. Y. Supp. 1127.

Argued before CLARKE, LAUGHLIN, SCOTT, DOWLING, and HOTCHKISS, JJ.

Max D. Steuer, of New York City, for the motion.
Einstein, Townsend & Guiterman, of New York City, opposed.

PER CURIAM. The defendant appealed from a judgment in favor of the plaintiff, and from 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 aniount the verdict that he had recovered.

The court therefore stated in announcing its decision that a new trial would be ordered, unless the plaintiff sirould stipulate to reduce the recovery by said amount, in which event the judgment was modified accordingly, and, as modified, affirmed, without costs. The plaintiff consented to reduce the recovery, and the judgnient 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 judgment, 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.

[1, 2] 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 considerable portion of the judgment. The plaintiff, who has recovered judgment against the defendant, on appeal to the appellate court voluntarily conFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

sents 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.

SCHWARTZ et al. v. MINSKER REALTY CO. (No. 6892.)

(Supreme Court, Appellate Division, First Department. March 12, 1915.) 1. LANDLORD AND TENANT 129FAILURE OF LANDLORD TO GIVE TENANT

POSSESSION-MEASURE OF DAMAGES.

The measure of damages for a landlord's failure to give a tenant possession under a lease is the difference between the rent reserved and the rental value of the premises and any necessary expenses incurred in preparing for occupation of the premises.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. $8

450-457; Dec. Dig. Omw 129.] 2. LANDLORD AND TENANT 129_REFUSAL OF LANDLORD TO LET TENANT

INTO POSSESSION-ACTIONS.

Refusal of a landlord to let a tenant into possession under a lease gives the tenant the right to maintain one action for the damages sustained.

[Ed. Note.—For other cases, see Landlord and Tenant, Cent. Dig. 88

450-457; Dec. Dig. Ow129.] 3. Costs Ow277—STAYING PROCEEDINGS IN SUBSEQUENT ACTION UNTIL PAY.

MENT OF Costs.

The rule that nonpayment of costs in an action entitles defendant, in whose favor they are awarded, to stay all proceedings in a subsequent action by the same plaintiff on the same cause of action, applies in all cases, unless there are special facts showing that it would be unjust and inequitable to apply it, and the mere pecuniary inability of plaintiff to pay the costs is not sufficient to bring the case within the exception.

[Ed. Note.-For other cases, see Costs, Cent. Dig. 88 1048–1060; Dec. Dig. C277.]

Appeal from Special Term, New York County.

Action by Harry Schwartz and another against the Minsker Realty Company. From an order denying a motion to stay all proceedings in an action, defendant appeals. Reversed, and motion granted.

Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ.

Gerald B. Rosenheim, of New York City, for appellant.
Max Brown, of New York City, for respondents.

McLAUGHLIN, J. The plaintiffs claim to have leased from the defendant for a term of five years certain premises in the city of New York. In February, 1912, they brought an action in the Munici

For other cases see same opic & KEY-NUMBER in all Key-Numbered Digests & Indexes

pal Court of the City of New York to recover $500 damages, on the ground that the defendants had refused to let them into possession of the premises leased. The action was discontinued, and judgment entered against plaintiffs for $30 costs. A short time thereafter they brought another action against the defendant in the City Court of the City of New York upon the same cause of action, except that $3,000 damages were claimed. The defendant moved that all proceedings in that action be stayed until the costs in the action in the Municipal Court had been paid. The plaintiffs then moved to discontinue the action in the City Court, which motion was granted, on condition that they pay the costs of the action in the Municipal Court, and also the costs in the City Court action. This they failed to do, and the motion to discontinue was denied, with $10 costs. The action was reached for trial on March 11, 1914, and at the close of plaintiffs' case the complaint was dismissed, and judgment entered against them in favor of the defendant for $68.63 costs. In December, 1914, the plaintiffs commenced this action in the Supreme Court to recover $6,000 damages, upon the same cause of action upon which a recovery was asked in the Municipal Court and in the City Court, except that the damages claimed were larger. The defendant then moved to stay all proceedings on the part of the plaintiffs until the costs in the two prior actions had been paid. The motion was denied, and defendant appeals.

[1] The damages sought to be recovered in each action are those alleged to have been sustained by reason of the defendant's refusal to let the plaintiffs into possession of the premises alleged to have been leased. In an action against a landlord for failure to give a tenant possession under a lease, the measure of damages recoverable is the difference between the rent reserved in the lease and the rental value of the premises and any necessary expenses incurred in preparing for occupation of the premises. Friedland v. Myers, 139 N. Y. 432, 34 N. E. 1055; Podalsky v. Ireland, 137 App. Div. 257, 121 N. Y. Supp. 950.

[2] The refusal of a landlord to let a person entitled thereto into possession gives to such person the right to maintain one action to recover the damages sustained. Pakas v. Hollingshead, 184 N. Y. 219, 77 N. E. 40, 3 L. R. A. (N. S.) 1042, 112 Am. St. Rep. 601, 6 Ann. Cas. 60; Kennedy v. City of New York, 196 N. Y. 19, 89 N. E. 360, 25 L. R. A. (N. S.) 847; Simon v. Bierbauer, 154 App. Div. 506, 139 N. Y. Supp. 327.

[3] It has frequently been held that the nonpayment of costs in an action entitles the defendant in whose favor they are awarded to stay all proceedings in a subsequent action brought by the same plaintiff

upon the same cause of action. Behrens v. Sturges, 138 App. Div. 537, 123 N. Y. Supp. 224; Hempstead v. White Sewing Machine Co., 134 App. Div. 575, 119 N. Y. Supp. 620; Singer v. Garlick, 123 App. Div. 282, 107 N. Y. Supp. 972; Ingrosso v. Baltimore & Ohio R. R. Co., 105 App. Div. 494, 94 N. Y. Supp. 177. The rule is to be applied in all cases, unless there be special facts and circumstances presented which show that it would be unjust and inequitable to apply it. Here

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