Shields v. Wortmann — 32 N.Y. St. Rep. 1103

Majority

p. 1103

Andrew J. Shields et al., App’lts, v. Sigismund B. Wortmann et al., Resp’ts.

(Supreme Court, General Term, Second Department

Filed July 18, 1890.)

Headnote

Afpeaj, — Reabqttment.

An order denying motion for extra allowance was reversed .on appeal. It subsequently appearing that there was a misapprehension of the grounds for such order, a reargument is granted.

Appeal from order granting an extra allowance and motion for reargument of former appeal.

After the reversal by the general term the trial judge again refused to grant an allowance, and a motion was made before Judge Barnard, who granted it.

It is now claimed that the trial judge exercised his discretion in ■denying the motion when made at the close of the trial..

Wm. J. Graynor, for app’lts; Johnston & Johnston, for resp’ts.

This is an appeal from an order for additional ■allowance made to the defendants. The plaintiffs submitted to a non-suit at the circuit, and the trial judge refused to make any allowance to the defendants.

Upon appeal to the general term that order was reversed, and .subsequently an order for an additional allowance of $500 was

p. 1104

made in pursuance of the decision of the general term, and now the plaintiffs have appealed from the last order.

The plaintiffs have also made a motion for a reargument of the’ first appeal.

There seems to have been some misapprehension respecting the first appeal, and we think it will be safest to grant a reargument.

We will 'therefore reverse the order for an allowance and grant, a reargument.

In that case, if the first order for an allowance be affirmed, that, will dispose of the controversy, and if it be reversed, as it was before, then the defendants can make a new application for an-additional allowance.

No costs to either party on this appeal.

Pratt, J., concurs.