Gates v. Williams — 63 N.Y. St. Rep. 529

Majority

p. 529

Ephraim C. Gates et al., App’lts, v. Ellen Williams, Impleaded, etc., Resp’t,

(New York Common Pleas, General Term,

Filed December 3, 1894.)

Headnote

Appeal—Reargument.

A reargument will not be granted on account of an omission in the re turn, which could have been amended on proper application.

Appeal from an order denying a motion for a reargumeñt of an appeal from an order of the city court, made at general term, which reversed a judgment rendered at the trial term and granted a new trial.

Gee. W. Stephens, for app’lts; James A. Beering, for resp’t.

After reversal by this court of the order of the court below, the respondent for the first time objects to the jurisdiction of this court to hear and determine the appeal; and leave to reargue the appeal is applied for to enable her to interpose the objection, which is predicated exclusively of the fact that, as alleged, judgment of reversal was not entered in the court below on the order appealed from, and here reversed at the time when the appeal was taken. From the affidavit of counsel for the appellants submitted on this motion', it appears that judgment of reversal was entered in the court below when the appeal from the order granting a new trial vras argued, submitted, and determined. The return of the court below did not include the judgment of reversal in extenso; but, if the return was defective in that respect, the respondent could have had it amended upon proper application. Failing such an application, she must be deemed to have waived the defect. This court was justified in entertaining and determining the-appeal, since from the return of the court below, certified as required, it appears that “ judgment was in due form entered ” on the order of reversal and granting a new trial.

Motion for reargument denied, with $10 costs.