Oliver v. French — 91 N.Y. Sup. Ct. 607

Majority

p. 607

Effie B. Oliver, Plaintiff, v. Margaret B. French and Others, Defendants.

Motion for reargument denied, with ten dollars costs.—

It is urged that a re-argument of this case should be had, for the reason that the opinion handed down by this court discusses the defective notice of motion and the case does not show that the objection that it was defective was taken before the Special Term. On the argument before this court, the objection was taken orally, and elaborately discussed by respondents’ counsel in his printed points, and no objection was made that that question was not raised in the court below, which is probably the reason of the discussion of the defective notice of motion in the opinion handed down by the court. But whatever led to that discussion in the opinion, the motion was also considez’ed upon its merits, and the conclusion of the Special Term was fully concurred in by this court. On this motion for a reargument the respondents show by affidavit, which is denied by affidavit on the part of the appellant, that the specific objection that the moving papers were defective was made at the Special Term before the argument upon the merits. But there seems to be another and almost insuperable objection to this court’s granting any relief on the appeal from the order in question. No specific error in the judgment being stated, either in the order to show cause, which was in this case, the notice of motion, or in the affidavit upon whicli it was granted, a reversal of the Special Term order by this court would furnish the moving party no relief, unless an order modifying the

p. 608

judgment was made by this court on appeal; and. m the absence of any specific designation in the moving papers of the particular irregularity complained of, it is difficult to sec how this court could, from an inspection of the voluminious record, satisfactorily correct the supposed irregularities which the appellant claims existed, without having the attention of the court directed specifically to them, either in the notice of motion, or the affidavits on which the motion was made. The motion for a reargument is denied, with ten dollars costs and printing disbursements.

Present — Mayliam, P. J., Putnam and Herrick, JJ.