Claflin v. Flack

Assuming that, although the remittitur has been filed in the court below, and our judgment made a judgment of that court, we still have jurisdiction of the motion, we are of opinion nevertheless that it should not be granted. The case involved no new question of law, and our decision was only an application of well-settled principles. The authority (Macullar v. McKinley, 99 N. Y. 353, 2 N. E. Rep. 9) so strenuously urged by the appellant was critically examined by us, and was found essentially distinguishable from the case at bar. Our decision in no way impugns the principle enunciated by the court of appeals. Although we adverted to the omission from the case of a statement that it contained all the evidence, and suggested the effect of such omission, the remark was obiter; and we proceeded *917to consider and determine the appeal upon the evidence as presented in the record before us. Fx industria we avoided to found our decision on the technical effect. The other considerations pressed upon us are overborne by the equal hardships to the respondent, and by the public interest in the end of the litigation. Motion denied, with costs.