Cudahy v. Rhinehardt — 45 N.Y. St. Rep. 738

Majority

p. 738

Patrick Cudahy et al., App’lts, v. Clarke. D. Rhinehardt, Sheriff, Resp’t.^[1]

(Court of Appeals,

Filed June 7, 1892.)

Headnote

Appeal—Re-abutment.

Counsel for defendants was advised on the argument that as the order of reversal did not show that it was made on the facts, it would be presumed that it was on the law only, but he made no application to postpone the ease to enable him to have the order amended, and after the appeal was decided against him and the order of the general term reversed, he made an application to that court for an amendment of its order by inserting therein a statement that the reversal was on the facts. Held, that a re-orgument would not be granted.

Motion for reargument.

C has. Putzel, for motion; Roe & Maclclin, opposed.

The counsel for the defendant was advised on the argument that as the order of reversal did not show that it was made on the facts, it would be presumed that the reversal was •on the law only and that to sustain the order it must appear that .some error of law was committed by the trial court.

' The counsel proceeded with the argument, making no application to postpone the case to enable him to have the order amended, .and it was not until after the appeal was decided against him and

p. 739

the order of the general term was reversed, that he made application to the general term for an amendment of its order by inserting therein a statement that the reversal was on the facts.

The application for a reargument upon the amended order ought not we think to be granted. The counsel took the risk of a decision against him on the order as it stood, with knowledge of the situation, and we think he should be concluded by Ms election to have the case decided on the questions of law in the record.

Motion denied, without costs.

All concur.