Cromwell v. Nichols

155 A.D. 905, 139 N.Y.S. 1051

Opinion

Per Curiam:

The question as to the presumption arising from the tax lease involved in this action was necessarily involved in the decision made in Lott v. De Graw (30 Hun, 417). An examination of the printed record on appeal in that case shows that this precise question was sharply and elaborately presented to the court by the briefs of the respective counsel. We do not feel at liberty, under the circumstances, to consider that question now open in this court, in view of the fact that it has stood unquestioned for a generation or more, and may be considered to have become the rule as to the statutes in question, all of which have been long since repealed. As to the conflict of presumptions arising from the proofs offered by the plaintiff, we are of opinion that a question of fact was presented for the determination of the trial court, and that its decision thereon is supported by the evidence and should not be disturbed on appeal. Whatever inconsistency may appear in the conclusions of law adopted by the trial court does not require any* disturbance of the judgment on this appeal, in view of the power conferred upon this court by section 1317 of the Code of Civil Procedure, as amended in 1912.* The interlocutory judgment, in so far as appealed from, is affirmed, with costs. Jenks, P. J., Hirsehberg, Burr, Thomas and Carr, JJ., concurred. Interlocutory judgment, in so far as appealed from, affirmed, with costs.

Footnotes

*

See Laws of 1912, chap. 380.—[Rep.