Hand v. Rogers — 38 N.Y.S. 2

Majority

p. 2

(16 Misc. Rep. 364.)

HAND v. ROGERS et al.

(Supreme Court, Appellate Term, First Department.

March 27, 1896.)

Headnote

Reahguhert or Appeal.

A reargument will not be granted, in the appellate term, unless some question decisive of the case and duly submitted has been overlooked, or the decision is in conflict with an express statute or a controlling decision which has been overlooked, or unless, since the decision, the court of appeals or the appellate division has decided adversely, the precise question involved.

Motion by plaintiff for reargument under rule 4 of the appellate division, regulating rehearing of appeals from city and district courts.

Motion denied.

For former report, see 32 N. Y. Supp. 920 , and 35 N. Y. Supp. 712 .

Argued before DALY, P. J., and McADAM and BISOHOFF, JJ.

Charles De Hart Brower, for motion.

John Henry Hull, opposed.

The practice is settled that no motion for a re-argument will be entertained except upon papers showing clearly (1) that some question decisive of the case, and duly submitted by counsel, has been overlooked by the court; or (2) that the decision is in conflict with an express statute, or with a controlling decision, either overlooked by the court, or to which its attention was not drawn through the inadvertence of counsel (Mount v. Mitchell, 32 N. Y. 702 , followed by the common pleas as a rule of practice in reference to appeals from the city and district courts; Curley v. Tomlinson, 5 Daly, 283 ; and see Marine Nat. Bank v. National City Bank, 59 N. Y. 67 , 73); or (3) that, since the decision by this term, the court of appeals or the appellate division has decided adversely the precise question involved.

As the application does not fall within any of these rules, i< must, be denied, with $10 costs.

Cases cited

Mount v. Mitchell 32 N. Y. 702 N.Y. p. 2
Marine National Bank v. National City Bank 59 N. Y. 67 N.Y. 1874-11-17 at 73 p. 2