Oppenheim v. Melnick 34 A.D.2d 784

In this action to recover a real estate brokerage commission, plaintiff appeals from so much of an order of the Supreme Court, Kings County, entered November 12, 1969 and made on reargument, as adhered to the court’s original decision granting limited relief on defendants’ motion to vacate a default judgment awarded by the court after inquest, namely, to the extent of reducing the principal amount of the award from $27,500 to $8,750 and directing entry of a resettled judgment in accordance with the reduction. Order affirmed insofar as appealed from, with $20 costs and disbursements. The motion to vacate the default judgment requested such other relief as the court might find proper; and the reargument of the motion explicitly presented to the court the propriety of the amount awarded to plaintiff as his damages. Moreover, the Trial Justice who heard the testimony at the inquest even on his own initiative had the statutory and inherent power to modify the amount of damages he had previously awarded to plaintiff (cf. CPLR 4404, subd. [b]; CPLR 5015; Ladd v. Stevenson, 112 N. Y. 325, 332; Matter of Baker v. Macfadden Pub., 300 N. Y. 325, 327; Matter of City of New York [Public Park], 291 N. Y. 501; Greenberg v. R.S.P. Realty Corp., 22 A D 2d 690). Martuscello, Acting P. J., Latham, Kleinfeld, Brennan and Benjamin, JJ., concur.