Rutherford v. Town of Madrid — 30 N.Y.S. 1134

Majority

p. 1134

RUTHERFORD, Appellant, v. TOWN OF MADRID, Respondent.

(Supreme Court, General Term, Third Department.

September 27, 1894.)

Headnote

Action by Annie Rutherford, as administratrix, etc., against the town of Madrid. Louis Hasbrouck, for appellant. F. J. Merriman, for respondent.

This case has heretofore been before this general term ( 77 Hun, 545 , 28 N. Y. Supp. 923 ), and we do not perceive that it now presents any different aspect from what it did then. The principles then enunciated as to the discretion to be exercised by courts in determining motions of this-character were carefully considered, and the rules-then laid down were not merely the dicta of the judge writing the opinion, but were the utterances of the general term, and they are the rules to govern the hearing and determining of such motions in this department until reversed or modified by the general term thereof, or by the court of appeals. They are not cast-iron rules, but, like othei general'

p. 1135

rules, subject to possible exceptions. The case before us is not one of those exceptional cases which is exempted from the general rule, but seems to be •one to which the general rules are peculiarly applicable. The order appealed from is reversed, with $10 •costs and printing and other disbursements, and the motion denied, with $10 costs.