Hunt v. Church — 73 N.Y. 615

Majority

p. 615

Mary R. Hunt, Respondent, v. Richard Church et al., Executors, etc., Appellants.

(Argued April 16, 1878;

decided April 23, 1878.)

George F. Danforth for appellant.

J. B. Adams for respondent.

Agree to affirm on opinion of Special Term.

All concur.

Judgment affirmed.

A motion was subsequently made for a reargument, on the ground that a point was omitted on the argument which would have been fatal to the judgment, to wit: That the action was against the representatives of a deceased surety upon a joint obligation, and that his estate was not liable. The court denied the motion, on the ground that if a reargument was had it would be upon the original record, in which there was no exception raising the point; and so, it could not be considered.

The case of Risley v. Brown ( 67 N. Y., 160 ), distinguished; as there, a motion was made to revive the action against the personal representatives of a deceased defendant, which motion was opposed on the ground presented here, and the question was fairly before the court on the motion.

Motion denied.