Taggart v. Wade — 3 N.Y.S. 322

Majority

p. 322

Taggart v. Wade et al.

(Supreme Court, General Term, Second Department.

December 13,1888.)

Headnote

Appeal—Rehearing—Omission from Decree.

A reargument will be granted where it was overlooked, on affirming a judgment in favor of plaintiff’s right to redeem from a mortgage foreclosure, and ordering an accounting, that no provision was made for allowance to defendant for repairs and improvements, and for interest paid on a prior mortgage.

Appeal from special term, Kings county.

On motion by Mary G. Rogers, one of the defendants in Taggart v. Wade, 1 N. Y. Supp. 900 , for a reargument.

Argued before Barnard, P. J., and Pratt, J.

Martin & Smith and M. W. Divine, for motion. Franklin & Clifford and H. H. Bartlett, for respondent.

Assuming that the principle upon which the affirmance of the plaintiff’s cause of action depends is right, the interlocutory decree

p. 323

appealed from should contain provisions for the allowance to the defendant upon the accounting for repairs and. improvements, and for interest paid on a prior mortgage on the property. The omission of the provision in the decree was overlooked. A general accounting was provided for, but was restricted so as to exclude these items of expenditure, if there be such. The motion for a reargument should therefore be granted, without costs.

Pratt, J., concurs.