Reilly v. Steinhart — 218 N.Y. 660

Majority

p. 660

Hugh J. Reilly, Appellant, v. Frank Steinhart, Respondent.

(Submitted May 1, 1916;

decided May 9, 1916.)

Headnote

Motion to amend remittitur by striking therefrom the words “ of fact” so as to read “ case remitted to Appellate Division to pass upon those questions which have not yet been considered.” (See 217 N. Y. 549 .)

David T. Davis for motion.

William C. Rosenberg opposed.

Upon the argument of this appeal the defendant did not claim that any error of law had been committed by the trial court except in one respect, and that was in holding that the contract, though not converted into a public document under the Cuban law, was valid under our law. No other question of law was argued or considered. The defendant cannot have a re-argument to submit questions of law which he failed to submit when the opportunity was offered to him (Rogers v. Laytin, 81 N. Y. 642 ; Mount v. Mitchell, 32 N. Y. 702 ; Ward v. Craig, 87 N. Y. 550 ). He cannot have an amendment of the remittitur that would send the case back to the Appellate Division for the consideration of questions of law as

p. 661

distinguished from questions of fact, for that might result in bringing the case here in successive installments. But the chief questions which the defendant now wishes to argue involve in reality a. consideration of the facts; and upon a review of the facts by the Appellate Division may be considered by that court. We see no reason, therefore, to fear that injustice will be done.

The motion should be denied.

All concur.

Motion denied.

Cases cited

Reilly v. Steinhart 217 N. Y. 549 N.Y. 1916-04-11 p. 660
Rogers v. Laytin 81 N. Y. 642 N.Y. 1880-06-15 p. 660
Mount v. Mitchell 32 N. Y. 702 N.Y. p. 660
Ward v. Craig 87 N. Y. 550 N.Y. 1882-01-24 p. 660