Duncan v. Root — 23 N.Y. St. Rep. 58

Majority

p. 58

Duncan et al., Resp’ts, v. Root, App’lt.

(New York Common Pleas, General Term,

Filed April 1, 1889.)

Headnote

Appeal—Reheabing.

A reargument will not be granted, unless it appear that some question-decisive of the case and duly submitted by counsel, was overlooked, or that the decision was in conflict with an express statute, or with a controlling decision to which the attention of the court was not drawn, through, nlglect or inadvertence.

On motion for reargument.

Clarh & Lynde, for app’lt; Putney, Bishop & Slade, or resp’ts.

It does not appear that any 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 through neglect or inadvertence. A reargument, therefore, cannot be granted under the rules laid down and adhered to by this court. Curley v. Tomlinson, 5 Daly, 283 .

The appellant seeks to present again to the court for further-consideration the same points urged upon the argument of the appeal. The refusals of the referee to find, as requested by defendant, were before the court, and there is nothing to show that the exceptions to such refusals were disregarded. The record shows that the facts, as to which defendant requested findings,were not supported by uncontradicted evidence. The sum of SSSS.fS paid by Gillespie, on August 11th, were not paid in settlement of the bills

p. 59

mentioned in defendant’s fourth request, but were paid on another account, and credited at first by a mistake, which was afterwards rectified. The fourth finding of fact negatives the finding as requested by defendant, and brought before the courts for review the same question which defendant’s exception raised, and which was the principal contention on the appeal. The general term considered and disposed of it.

Motion denied, with ten dollars costs.

Larremore and Van Hoesen, JJ., concur.