First. The remittitur must be so amended as to conform to the opinion in respect to the costs of this court which in the event of an affirmance of the judgment are awarded to the appellant.
Second. The motion to further amend so as to give the appellant costs of the general term should the stipulation be made which will result in an affirmance of the judgment, is denied. The defendant omitted to call the attention of the general term to the point upon which it prevails in the court. Had it done so this appeal might, and probably would, have been unnecessary. Its request to be awarded costs of that court, therefore, is wholly without equitable justification.
Third. The appellant further insists that this case does *127not come within the rule authorizing this court to permit an affirmance of the judgment after modification pursuant to stipulation. In -view of the fact that the counsel for the appellant upon the argument of the appeal recommended a modification of the judgment and pointed out the manner for determining the amount which should be deducted therefrom, we need not consider the argument now presented. The amendment requested in that respect is denied.
All concur, except Haight, J., absent.