Agree to affirm on opinion of Special Term.

All concur.

Judgment affirmed.

A motion was subsequently made for a reargument, on the ground that a point was omitted on the argument which would have been fatal to the judgment, to wit: That the action was against the representatives of a deceased surety upon a joint obligation, and that his estate was not liable. The court denied the motion, on the ground that if a reargument was had it would be upon the original record, in which there was no exception raising the point; and so, it could not be considered.

The case of Risley v. Brown (67 N. Y., 160), distinguished; as there, a motion was made to revive the action against the personal representatives of a deceased defendant, which motion was opposed on the ground presented here, and the question was fairly before the court on the motion.

All concur.

Motion denied.