LAUGHLIN, J.:

This is an action for an accounting of the income under a lease of the premises situate at the southeasterly corner of Thirty-ninth street and Broadway in the city of New York, known as the Casino property, and it is based on an agreement in writing between the parties, made on the 24th day of April, 1897, by which the defendant, in the event of the purchase of the lease by him under a decree of foreclosure in an action then pending, agreed, for the term of the existence of said lease and any renewal thereof and any further lease of the property that might be obtained by the parties, to pay to the plaintiff annually a sum equal to one-quarter of the net profits received and realized under the lease, over and above the sum of $25,000, which was to be first deducted from the annual gross income for the payment of the ground rent, taxes, assessment and insurance. When the cause was moved for trial an interlocutory judgment was entered, by consent, directing the defendant to account for the net profits derived under the lease from the 17th day of October, 1898, to the date of the accounting and for the moneys which the plaintiff may be entitled to receive under said agreement. The attorneys for the defendant stipulated in writing for the entry of the interlocutory judgment in this form. The defendant, upon affidavits showing that he did not obtain possession of the premises under the lease until on or about the 1st day of March, 1899, moved to amend the interlocutory judgment by inserting that date in place of the 19th day of October, 1898, as the date from which he should account. Although it is not controverted that the defendant did not obtain possession until the 1st day of March, 1899, it appears that he purchased the lease at the foreclosure sale and obtained the referee's deed on the 19th day of October, 1898, the date from which he has been directed to account. It, therefore, presumptively appears that he was entitled to possession from that date. Prior to obtaining actual possession he may have received rent or other consideration from those who remained in possession, and if so, it is his duty to account therefor. If he received no rent, income or other consideration under the lease between the 19th day of October, 1898, and the 1st day of March, 1899, there is nothing to account for during that period under the interlocutory decree, and, therefore, in no event is he prejudiced by the requirement that he should account from the date of the purchase of the lease. If, on the other hand, he received moneys or other property between the date of the purchase of the lease and the time he obtained possession thereunder in which the plaintiff is entitled to share, her rights will be lost, unless he is required to account therefor in this action.

Moreover, there was no authority to amend the interlocutory judgment in this respect by motion. It is not claimed that it was not entered in strict accordance with the agreement of the parties. It cannot be assumed that the plaintiff would have consented to the interlocutory judgment if it had not required the defendant to account from the date of the purchase of the lease. If the defendant desired to be released from his stipulation his remedy was by motion for such relief, and to have the interlocutory judgment vacated and not by a motion to correct the decree as entered.

The purpose of the motion for a resettlement of the order was to have it recited that counsel for defendant entered a preliminary objection to the hearing of the motion at Special Term, Part I, upon the ground that the interlocutory judgment had been granted at Special Term, Part III, and that the hearing on the motion should be referred to the justice who presided at the time of granting the interlocutory judgment. There is no merit in this objection and it was properly overruled.

It follows, therefore, that both orders should be affirmed, with one allowance of ten dollars costs and disbursements.

VAN BRUNT, P.J., PATTERSON, INGRAHAM and HATCH, JJ., concurred.

Orders affirmed, with one allowance of ten dollars costs and disbursements.