Majority
p. 75Francis C. Lawrence, Resp’t, v. The Metropolitan Elevated R. Co. et al., App’lts.[1] (New York Common Pleas, General Term Filed June 2, 1890.)
Headnote
Appeal — Reargumekt.The evidence for the admission of which the judgment was reversed appearing not to affect plaintiff’s right to an injunction, but only the amount of damages, Reid, that as there was a probable error in directing a reversal of the judgment in its entirety a reargument should be ordered.
Motion for reargument.
John A. Weeks, Jr., for motion; Edward 8. Sapallo and Brain ard Tolies, opposed.
The appeal herein was argued at the January general term (1890), and reversal of the judgment was directed, •the opinion of the chief justice, concurred in by me, being to the effect that alleged incompetent testimony concerning the fee value of the premises affected by this action was admitted upon the trial.
The respondent thereupon moved at the March general term for a reargument. A careful consideration of the briefs submitted upon the last mentioned motion shows a probable error in directing a reversal of the judgment appealed from in its entirety.
The admission of such alleged incompetent testimony does not
p. 76
seem to affect the plaintiff’s right to an injunction restraining the defendants from the further operation of their road in front of the plaintiff's premises as directed by the judgment. And there is thus presented to this court a fair question as to whether so much of the judgment as directs the injunction should not have been affirmed, and the reversal limited to the award of the fee damages. I think, therefore, that the respondent has shown himself to be entitled to a reargument of this appeal within the provisions of rule 16 of this court, and that such reargument should be ordered.
Daly, J., concurs.