Hand v. Rogers — 74 N.Y. St. Rep. 370

Majority

p. 370

Hand v. Rogers et al.

(Supreme Court, Appellate Term, First Dept.,

Filed March 27, 1896.)

Headnote

Appeal—Reargument.

A reargument, in the appellate term, will not he granted (1) unless some question decisive of the case has been overlooked; or unless the decision is in conflict with an express statute or a controlling decision; or (3) unless, sinee the decision, the court of appeals or the appellate division has decided adversely the precise question involved. '

Motion for reargument under rule 4 of the appellate division, regulating the hearing of appeals from city and district courts.

Charles De Hart Brower, for motion; John Henry Hull, opposed.

The practice is settled that no motion for a reargument will be entertained except upon papers showing clearly (1) that some question decisive of the case, and duly submitted by counsel, has been overlooked by.-the court; or (2) that the decision is in conflict with an express statute,’ or with a controlling decision, either overlooked by the court, or to which its attention was not drawn through the inadvertence of counsel (Mount v. Mitchell, 32 N. Y. 702 , followed by the common pleas as a rule of practice in reference to appeals from the city and district courts; Curley v. Tomlinson, 5 Daly, 283 ; and see Marine Nat. Bank v. National City Bank, 59 N. Y. 67 , 73); or (3) that, since the decision by this term, the court of appeals or the appel

p. 371

late division has decided adversely the precise question involved; hut even then there must be doubt as to the correctness of our decision (Butterfield v. Radde, 40 N. Y. Supr. Ct. 169 ).

As the application does not f all_ within any off these rules, it must be denied, with $10 costs.

Cases cited

Mount v. Mitchell 32 N. Y. 702 N.Y. p. 370
Marine National Bank v. National City Bank 59 N. Y. 67 N.Y. 1874-11-17 at 73 p. 370