Welsh v. New York Elevated Railroad — 40 N.Y. St. Rep. 990

Majority

p. 990

Filed November 4, 1891.

S. Charles Welsh, Ex’r, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts.

Headnote

Motion for reargument.

G. Willett Van Nest, for the motion; Julian T. Names and Samuel Blythe Rogers, contra.

We have reserved the decision of this motion in the expectation that the point upon which the reversal of the judgment proceeded would be authoritatively adjudicated by the court of appeals in the disposition of the Gray ease. But, as the court has determined that case without passing upon the question in controversy, we do not deem it proper to delay still further the decision of the motion.

In order to a re-argument, the moving papers must exhibit “clearly, that

p. 991

■some question decisive of the case, and presented by counsel, has been overlooked by the court, or that the decision is inconsistent with some statute, or with a controlling decision, to which the attention of the court was not drawn through the neglect or inadvertence of counsel.” Rule 16; Fosdick v. Town of Hempstead, 126 N. Y., 651 ; 37 N. Y. State Rep., 130. By reference to the opinion on the reversal of the judgment, it will be seen that the decisión of the court was based exclusively on the ground that the learned trial judge rejected evidence of benefits to the propeity in litigation, and, in the computation of damages, disallowed any credit for such benefits. Now, upon this point, we are not aware that the court overlooked any “ question decisive of the case; ” and we are equally certain that our decision is not inconsistent with any statute or controlling adjudication to which, through tne neglect or inadvertence of counsel, our attention was not drawn. Not otherwise than by the modesty of the learned counsel for the respondent can any defect be imputed to his brief or his argument.

Upon his argument in support of the present motion, it is quite obvious that his criticisms involve the merits an l validity of the reversal, and that, however prevalent they may be with the appellate tribunal, they present no ground for a reargument in th:s court.

Motion denied.

Daly, Ch. J., and Bischoff, J., cone r.

Howard A. Sperry, Resp’t, v. Theodore Hellman et al., App’lts.

Respondent’s motion for reargument.

Howard A. Sperry, for resp’t; Seligman & Seligman, for app’lts.

The motion papers do not disclose, any of the grounds specified i i rule 16 of the general term rules upon which a reargument may be allowed and this motion is for that reason denied. The question involved in this appeal is, however, of sufficient importance to merit the attention of the court of appeals and respondent may, if he so desires it, have leave to appeal to that court. No costs of this motion.

Daly, Ch. J., concurs.