Lee v. Corn — 26 N.Y.S. 1136

Majority

p. 1136

LEE et al., Appellants, v. CORN et al., Respondents.

(City Court of New York, General Term.

December 8, 1893.)

Headnote

Action by William H. Lee and others against Meyer Com and others.

Argued before EHRLICH, C. J., and NEWBURGER and MCCARTHY, JJ.

J. Baptist Marshall, (J. D. Hallen, of counsel,) for appellants.

Paul Wilcox, (B. Lewinson, of counsel,) for respondents.

When this case was at a previous general term, ( 21 N. Y. Supp. 1073 ; 22 N. Y. Supp. 1130 ,) the law controlling it was laid down,, and this seems to have been followed by the learned trial judge, as authority for dismissing the complaint. We find no error in the disposition made. The confession of judgment was never canceled of record, but kept alive. Under such circumstances, the election made was binding, and the plaintiffs are not in a position to recall it. The exceptions will he overruled, and judgment ordered for defendant, with costs and costs of appeal. The motion for an extra allowance will be granted, and 5 per cent, awarded. All concur.