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City of New York v. Montague

149 A.D. 601 Court First Department, Decision date 1912-03-08 Docket Appeal No. 2 English

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p. 601
The City of New York, Respondent, v. Gilbert H. Montague, as Receiver of Fulton Street Railroad Company and Others, Defendants, Impleaded with Adrian H. Joline and Douglas Robinson, as Receivers of the Metropolitan Street Railway Company, Respondents, and Alexander Smith Cochran and William F. Cochran, Jr., as Surviving Trustees under the Will of William F. Cochran, Deceased, and Others, Appellants.
(Appeal No. 2.)
First Department,
March 8, 1912.

Headnote

Appeal—motion for leave to renew motion on additional papers.
An application for a reargument and for a rehearing of a former application for leave to reinstate portions of an answer on additional papers is in effect a motion for leave to renew the motion on additional papers and is appealable.
p. 602
Appeal by the defendants, Alexander Smith Cochran and another, as surviving trustees, etc., and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of January, 1912, denying the said defendants’ motion to vacate an order entered in said clerk’s office on the 17th day of November, 1911, and to reinstate part of the amended answer of certain of the appellants, and also denying a stay of proceedings.
Edgar J. Kohler [Alfred A. Gardner with him on the brief], for the appellants.
Alfred Ely, Jr. [Arthur H. Masten, William H. Coleman and Frederick W. Kobbe with him on the brief], for the defendants,, respondents.
Terence Farley, for the plaintiff, respondent.

The application was, in form, both for a reargument and for a rehearing of the former application on additional papers, but was, in effect, a motion for leave to renew the motion on additional papers, and was, therefore, appealable. (Conlen v. Rizer, 109 App. Div. 537 ; Seletsky v. Third Ave. R. R. Co., 44 id. 632 .) The additional papers do not materially change the record. The motion was, therefore, properly denied and the order should be affirmed; but since the record is substantially the same and the material questions are the same as those presented by the other record on the appeal of these appellants from the original order (City of New York v. Montague, No. 1, 149 App. Div. 475 ), which was argued and is to be decided herewith, the order should be affirmed, without costs.

Present — Clarke, McLaughlin, Laughlin, Scott and Dowling, JJ.

Order affirmed, without costs.

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