Stearns v. Hemmens — 22 N.Y. St. Rep. 24

Majority

p. 24

John N. Stearns, Resp’t, v. Louis Hemmens et al., App’lts.

(New York Common Pleas, General Term,

Filed December 3, 1888.)

Headnote

1. Appeal—Reargtjment—When granted.

A reargument will only be granted when some question decisive of the case, and duly submitted by counsel, has been overlooked by the court, or that the decision is in conflict with an express statute, or with a controlling decision to which the attention of the court was not drawn.

2. Same—When allowed to court of appeals.

The general term of the New York common pleas will not allow an appeal to the court of appeals, although the reasons assigned for his decision by the trial justice may be unsound, if the decision itself be correct, depending mainly upon a question of fact.

Appeal from second district court. Motion for reargument. The former opinion will be found in 16 N. Y. State Rep., 701.

H. Joseph and Coudert Bros., for app’lts; Stearns and1 Curtis and Cephas Brainard, for resp’t.

—It is not necessary for the ju ges sitting at this term to say whether or not they would have concurred in the opinion that was delivered at the time this-cause was decided, because a reargument is not to be ordered for the mere reason that the decision of one general term does not meet the approval of the judges composing . a succeeding general term. The decision is binding upon the court as well as upon the parties, unless a reargument be had for some of the reasons mentioned in the case of Curley v. Tomlinson ( 5 Daly, 283 ).

The defendant has not brought this application within the rule laid down in Curley v. Tomlinson.

No controlling decision, no statute decisive of the case-has been overlooked, and no better reason for a reargument, has been assigned than the opinion of counsel that the court ought to have adopted the views that his associate urged on the original argument.

Nor does there seem to be any reason for our allowing the defendant to appeal to the court of appeals. It may

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be true that the reasons assigned by Justice Clancy for his decision are unsound and unsatisfactory, but that is not good ground for our authorizing an appeal. The question was, is the decision right? The justice's mental processes were of no consequence if his conclusion was correct. He decided this case upon the facts, and the former general term thought that that conclusion is sound. The record of the conviction of the defendant did not, we can confidently say, anywise affect his conclusion that the defendant had kept a gaming house on the demised premises. The justice explicitly said that the record of conviction was useful only for the purpose of showing why the defendant no longer permitted gaming to be carried on, but that it was upon other evidence that he found that the defendant was guilty of keeping a gambling house.

The court of appeals does not sit to review questions of fact, and there are no questions of law involved that seem to us to require consideration by the court of last resort.

The motion for a reargument, and the motion for leave to go to the court of appeals, are both denied, with ten dollars costs.