In re Van Alstyne — 128 N.Y.S. 486

Majority

p. 486

In re VAN ALSTYNE et al.

(Supreme Court, Appellate Division, Third Department.

March 23, 1911.)

Headnote

Courts (§ 202^[1] )—Appeal from Surrogate—Reargument—Conditions.

Where a notice o£ appeal stated that the appellant intended to bring the facts up for review, under Code GLv. Proc. § 2586, providing that, where an appeal is taken on the facts, the appellate court has the same power to hear the question of fact which the surrogate had, and may in its discretion receive further testimony, this was notice to the respondent to settle into the case his objections and exceptions; and where many of his objections and exceptions were so settled, but it appeared from affidavits that many important ones were omitted, a reargument will be allowed, on payment by respondent of costs and disbursements.

[Ed. Note.—For other cases, see Courts, Cent. Dig. § 486; Dee. Dig. § 202.^[1] ]

.Houghton, J., dissenting in part.

On petition of appellant for reargument.

Reargument granted.

For former opinion, see 126 N. Y. Supp. 1078 .

p. 487

Argued before SMITH, P. J., and KELLOGG, SEWELL, and HOUGHTON, JJ.

Charles Oakes, for appellant.

Thomas F. Wilkinson, for respondent.

The notice of appeal stated that the appellant intended to bring up the facts for review, under section 2586 of the Code of Civil Procedure. This was notice to the respondent of the importance of settling into the case his objections and exceptions. Many of his objections and exceptions are so settled; but it appears now, from the affidavits, that some important ones were omitted. A reargtiment, therefore, is made proper by this. omission, and he asks to be relieved from the effect thereof.

A reargument is granted, upon condition that the respondent pay to the appellant all costs and disbursements made since the notice of appeal was served, with $150 in addition thereto.

HOUGHTON, J., dissenting as to the $150.