Motion to recall the remittitur and to change the decision herein so far as it relates to the accounting between the parties as to rents, interest, etc., in order to place the plaintiff in the position he would have been in had title been closed as of the law day.
It is now alleged that plaintiff has, since the trial, necessarily made extensive repairs to the premises in suit in order to maintain them in rentable condition; that the property is enhanced in value, and that the directions for judgment as stated in the opinion herein so far as they permit defendants to elect whether to take the rents or the interest as they may prefer would impose a substantial loss on the plaintiff. None of these facts appeared on the record or briefs.
The accounting should, therefore, be ordered made as if the title to the premises had been transferred on the day of the trial, September 13, 1918. Defendants should receive the rents accruing after that date and be charged with taxes, insurance and necessary and reasonable repairs and operating expenses, and they should pay the plaintiff the interest on $4,500 from that date; on $1,000 from February 20, 1920, and the amount paid by plaintiff for interest on the bank mortgage.
Let the return of the remittitur be requested and on the return thereof let it be amended accordingly, without costs.
HISCOCK, Ch. J., CHASE, HOGAN, CARDOZO, POUND, McLAUGHLIN and ANDREWS, JJ., concur.
Motion granted.