Fraser v. Alpha Combined Heating & Lighting Manufacturing Co.

On May 10, 1898, judgment was entered in tfris action on a verdict rendered by a jury in favor of plaintiff and against the defendant. On May seventeenth, defendant served a notice of appeal, appealing from said judgment and from the order denying a motion for a new trial. . But no such order was then in existence and no motion for a new trial had then been made, and was not made until September 17, 1898, upon which an order was made on September 23, 1898, at the Special Term by the judge who had tried the case, on a case as settled, denying the motion *207“ with the same force and effect as if a motion for a new trial on the same grounds had been made on the minutes at the close of the trial and denied.” On December 9, 1898, judgment of affirmance was entered, pursuant to the General Term opinion (25 Misec. Rep. 422), by which it appears that no point whatever made by appellant had been overlooked. On March 3, 1899, defendant made a motion, returnable before a justice of this court (naming him) sitting at Special Term on March 6, 1899, for a reargument of the appeal, decided in December previous, on the ground that the General Term had made an error in assuming that no appeal had been taken from the order of September .23, 1898, denying the defendant’s motion for a new trial, upon which an order was made on May 22, 1899, denying it, and from this order the present appeal is taken. Motions for a reargument of an appeal must be made to the General Term at the next term succeeding the decision. Rule 4 of Supreme Court, relating to appeals to the Appellate Term from this court. Rule 8 of the Appellate Division. These rules are made applicable to the City Court by section 323 of the Code. Nordlinger v. Levine, 45 N. Y. St. Repr. 52.

Order appealed from is affirmed, with costs and disbursements.

The following is the opinion upon a motion for a reargument:

As to the motion for a reargument of the appeal, which is now asked for in the notice of appeal from the said order, and which is made to the General Term, we answer that no question decisive of the case and which was presented on the argument of the appeal, has been overlooked, nor has our attention been called to a controlling decision with which our decision is inconsistent. Hand v. Rogers, 16 Misc. Rep, 364; Ernst v. Estey Wire Works Co., 21 id. 68. The motion for a new trial was made at a Special Term, on a case as settled, pursuant to section 1002 of the Code. What reason or power had the Special Term Justice to order a denial of this motion “ with the same force and effect as if a motion for a new trial on the same grounds had been made on the minutes at the close of the trial and denied ” as he did in the order of September 23, 1898 ? Hone whatever. It was not a motion for a new trial on the minutes, pursuant to section 999 of the Code. There is no notice of appeal from this order of *208September 23, 1898, denying the motion for a new trial, in the appeal book, and none is in existence; therefore, even if a reargument is granted, the evidence could not be reviewed on the facts. This motion for reargument is made eleven months after the decision of the appeal.

Motion denied, with ten dollars costs.

Fitzsimons, Ch. J., and O’Dwyer, J., concur.

Order affirmed, with costs and motion denied, with ten dollars costs. '