Martine v. Huyler — 34 N.Y. St. Rep. 326

Majority

p. 326

Henry C. Martine, Pl’ff, v. Martha M. Huyler, Def’t.^[1]

(Supreme Court, General Term, Second Department,

Filed December 8, 1890.)

Headnote

1. Appeal—Besettlement of obdeb of beveesal.

The general term reversed a judgment and granted a new trial with costs to abide the event. The order as entered provided for a new trial “with costs to the appellant to abide the event." Held, that the order was not supported by the decision and that it should be resettled in accordance therewith.

2. Principal and agent—Compensation—Estoppel.

In an action by an agent for a balance claimed to bo due, it appeared that he had rendered to defendant monthly statements in which he credited himself for services at the rate claimed by defendant to be the amount agreed upon. Held, that plaintiff was concluded by his conduct and could not claim that his salary was at a greater rate.

p. 327

Motion to resettle order and for re-argument,

Horace K Deming, for motion; tiamuel Cohn, opposed.

This is a motion for a resettlement of the order of reversal entered in this action upon the decision of the general term of this court, and for a re-argument of the appeal.

The motion to resettle the order should be granted so as to reverse the judgment and grant a new trial with costs to abide the event according to the decision of the court.

In relation to the re-argument ,it is sufficient to say that no ground for such an application is presented. The appeal was argued orally by counsel on both sides and the case received a very careful consideration by the court and there was no misapprehension or mistake in respect to any point.

The monthly statements of the plaintiff in which he charged his salary constituted overwhelming evidence against him sufficient to destroy his claim and the testimony he offered in its support. The plaintiff was concluded by his conduct

The application for a re-argument should be denied, with ten dollars costs.

The order is not supported by the decision. The reversal was with costs to abide event and not with costs to appellant to abide event, and the order must be corrected to conform to the decision. The motion for re-argument is denied, without costs to either party. The opinion is supported by a re-examination of the case; nothing was overlooked. The facts are as stated in the opinion and an oral argument would give no advantage after the two examinations of the case.