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City of New York v. Montague

134 N.Y.S. 89 Court N.Y. App. Div. Decision date 1912-03-08 English

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p. 89
CITY OF NEW YORK v. MONTAGUE et al.
(Supreme Court, Appellate Division, First Department.
March 8, 1912.)

Headnote

Appeal and Ebrob (§ 108[1] )—Appealable Order.
An order denying a motion to vacate an order striking out a separate defense and counterclaim, and for a rehearing on additional papers of a former motion to strike, is appealable.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 699-710; Dec. Dig. § 103.*]
Appeal from Special Term, New York County.
Action by the City of New York against Gilbert M. Montague, as receiver, and others. From an order denying motion to vacate an order, and for rehearing of a. prior motion, Alexander S. Cochran and other defendants appeal. Affirmed.
See, also, 130 App. Div. 791 , 115 N. Y. Supp. 410 ; 145 App. Div. 172 , 129 N. Y. Supp. 1084 ; 131 N. Y. Supp. 1122 ; 134 N. Y. Supp. 87 .
Argued before CLARKE, McLAUGHLIN, LAUGHLIN, SCOTT, and DOWLING, JJ.
Edgar J. Kohler (Alfred A. Gardner, on the brief), for appellants. Terence Farley, for respondent City of New York.
Alfred Ely, Jr. (Arthur H. Masten, William M. Coleman, and Frederick W. Kobbe, on the brief), for other respondents.

The application was, in form, both for a reargument and for a rehearing of the former application on additional papers, but was, in effect, a motion for leave to renew the motion on additional papers, and was, therefore, appealable. Conlen v. Rizer, 109 App. Div. 537 , 96 N. Y. Supp. 566 ; Seletsky v. Third Ave. R. R. Co., 44 App. Div. 632 , 60 N. Y. Supp. 495 . The additional papers do not materially change the record.

The motion was therefore properly denied, and the order should be affirmed; but since the record is substantially the same, and the material questions are the same, as those presented' by the other record! on the appeal of these appellants frojn the original order, which was argued and is to be decided herewith, the order should be affirmed, without costs.

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