
    Samuel Schoen, Respondent, v. Samuel W. Stoloff, Defendant, and Esther Bernstein, Appellant.
   Judgment, resettled judgment and order resettling judgment in so far as it denies motion for a new trial, reversed upon the law and the facts and a new trial granted, costs to abide the event, unless plaintiff stipulate within ten days to reduce the damages to the sum of $1,146.10, in which event the judgment for said amount, as so modified, together with costs of the trial as already taxed, and the order in so far as appealed from, are unanimously affirmed, without costs. The amount awarded for diminution of rental value should not have exceeded $45 a month, or a total, for the period upon which such diminution was computed, of $810. In other respects the damages awarded are supported by the evidence. The course of the trial was tantamount to an acquiescence upon the part of appellant in her primary liability to plaintiff for the damages occasioned by a failure to observe the covenant to make the repairs provided thereby. Lazansky, P. J., Rich, Young, Kapper and Seeger, JJ., concur.  