Rebhun v. Swartwout — 3 N.Y.S. 419

Majority

p. 419

Rebhun v. Swartwout.

(City Court of New York, General Term.

December 3,1888.)

Headnote

New Trial—Rehearing Motion—Laches.

It is error 10 months after trial, execution having in the mean time issued, and a receiver been appointed in supplementary proceedings, to grant a new trial on re-argument of a motion therefor, made on the minutes at the trial and denied.

Appeal from trial term.

Action by Nathan Rebhun against Frank G. Swartwout. Plaintiff appeals from an order vacating and setting aside a judgment entered in his favor upon the verdict of a jury and granting a new trial.

Argued before McAdam, C. J., and Browne, J.

Abram Kling, for appellant. L. A. Gould, for respondent.

Independently of the question of laches and power, we think the evidence presented a pure question of fact, which was properly submitted to the jury on conflicting evidence, and that there was no legal reason for disturbing the verdict which they found in favor of the plaintiff. The exceptions taken during the trial are without merit, and the case was clearly submitted to the jury by the trial judge. A motion for a new trial was made on the minutes at the trial, which was denied. No appeal was taken, and the parties seem to have acquiesced in the disposition made of the case. Execution was issued, the defendant examined on supplementary proceedings, and a receiver was appointed. Ten months after the trial the motion for a new trial was revived in the form of a reargument, and it was at this time, and in this form, granted. We think the order was improvidently made, and ought to be reversed, with costs.