Delafield v. Commercial Tel. Co.

3 N.Y.S. 921, 1889 N.Y. Misc. LEXIS 139

Opinion

Per Curiam, {orally.)

In this case we do not think that the judge who made the order improperly exercised his discretion, and it is our opinion that the order must be affirmed. The complaint was dismissed upon the facts set up by the supplemental answer, which facts occurred subsequently to the granting of the injunction. There was no evidence before the court at that time whether or not the original injunction order was properly obtained. The judge therefore was justified in refusing to find upon that question; but, even if he were not, defendant’s remedy was by an appeal from that judgment. While every court of record has the power to relieve against an oversight, and to correct an error arising through inadvertence, the application in this case was not founded on these grounds, and, if it had been, was properly denied, for the papers show that the question was raised on the trial, and not overlooked.