Moore v. Moore — 120 N.Y.S. 404

Majority

p. 404

MOORE et al. v. MOORE.

(Supreme Court, Appellate Division, Third Department.

January 7, 1910.)

Headnote

On motion for reargument. Denied.

For former opinion,

see 119 N. Y. Supp. 108 .

This motion is based on a misconception of our former decision. We held that the conclusion of the referee that the deed was an absolute conveyance was against the clear weight of evidence, and that the plaintiffs were entitled to an unqualified reversal of the judgment. They were willing, however, that the deed might stand as security, and, while expressly refraining from requiring such a disposition of the case, we permitted the defendant to consent thereto, if he preferred such a disposition to a reversal of the judgment. That permission was for his benefit, and his unwillingness to give such consent does not affect the plaintiffs’ right to a reversal of the judgment for the reasons stated in the opinion.

The motion for a reargument is therefore denied.