Majority
p. 187Shipherd v. Cohu et al. (Superior Court of New York City, General Term. May 6, 1889.) Argued before Sedgwick, G. J., and Freedman and O’Gorman, JJ.
Headnote
Appe al—Rehearing—Mistake.Where the record on appeal erroneously recites an order as of a certain date, and the court assumes that the date is correct, a rehearing on the ground of mistake will be denied.
Motion by plaintiff for reargument on the ground that the record showed that a certain order was made in 1888, when in fact it was made in 1887, and that the mistake on the record misled the court at general term in rendering its former decision. For opinion on former hearing, see 4 Y. Y. Supp. 393.
Jacob R. Shipherd, in pro. per., for the motion. Alexander Thain, for respondents, contra.
The ground asserted for reargument is, that the court mistook a fact. That fact was that a certain order to which the court referred in its opinion was dated in 1887, instead of 1888, as the court assumed. The court was not mistaken, for the existence of the fact was to be determined solely by the contents of the record then before it. By that the affidavit of Mr. Thain declared that the order was made in 1888, and the court could not assume otherwise. If, however, the order was of the date in 1887, the result would not have been different. Other considerations would have required the order made by the general term. Motion denied, with $10 costs. All concur.