Majority
p. 661Eliza B. Anderson, Respondent, v. The Continental Insurance Company of the City of New York, Appellant. (Submitted June 21, 1887; decided June 28, 1887.)
Headnote
The motion papers, on motion for reargument, should be sufficient to enable the court to determine whether the decision requires correction in any respect.Where a case was decided here on a dissenting opinion m the court below, held, that on motion for reargument for alleged errors in that opinion the case on appeal containing the opinion should have been furnished.
This was a motion for reargument.
p. 662The following is the mem. of opinion. “ The motion should be denied.”
“ This case was decided at Albany in April last, and the judgment was reversed, and a new trial granted, on the dissenting opinion of Davis, P. J., at General Term. Neither a copy of that opinion, nor a copy of the case is furnished on this motion, and we have them not now before us. It is said that there are some expressions in the opinion which may embarrass the plaintiff on the new trial ordered. W'e considered that, in the main, the opinion was correct. According to our memory, Judge Davis said that there was no time when the defendant could have maintained an action against the plaintiff for the premium after the risk had terminated, or something to that effect. The motion papers should be sufficient to enable us to determine whether our decision requires correction in any respect. We ought not to be supposed to carry about with us, after decision, the papers in the numerous cases which have been argued. The case on appeal, containing the opinion at General Term, should have been furnished. On the papers now presented, we see no reason for changing our decision, nor can we perceive any theory upon which the plaintiff can recover- on the facts appearing on the first trial.
Mitchell d> Mitchell for motion.
Thomas H. Hubbard opposed.
mem. for denial of motion ior reargument.
All concur.
Motion denied.