Duncan v. Root

New York Court of Common Pleas

Duncan v. Root

4 N.Y.S. 613, 23 N.Y. St. Rep. 58, 1889 N.Y. Misc. LEXIS 1628

DecidedApril 1, 1889

StatusPublished

This text of 4 N.Y.S. 613 (Duncan v. Root) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Duncan v. Root, 4 N.Y.S. 613, 23 N.Y. St. Rep. 58, 1889 N.Y. Misc. LEXIS 1628 (N.Y. Super. Ct. 1889).

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Opinion

Daly, J.

It does not appear that any question decisive of the case, and duly submitted by counsel, has been overlooked by the court, or that the decision is in conflict with an express statute, or with a controlling decision to-which the attention of the court was not drawn through neglect or inadvertence. A reargument, therefore, cannot be granted under the rules laid down and adhered to by this court. Curley v. Tomlinson, 5 Daly, 283. The-appellant seeks to present again to the court for further consideration the same points urged upon the argument of the appeal. The refusals of the referee to find as requested by defendant were before the court, and there is nothing to-show that the exceptions to such refusals were disregarded. The record shows that the facts as to which defendant requested findings were not supported"by uncontradicted evidence. The sum of $853.73 paid by Gillespie on August lltli were not paid in settlement of the bills mentioned in defendant’s fourth request, but were paid on another account, and credited at first by a mistake, which was afterwards rectified. The fourth finding of fact negatives the finding as requested by defendant, and brings before the court for review the same question which defendant’s exception raised, and which was the principal contention on the appeal. The general term considered and disposed of it. Motion denied, with $10 costs.

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Daly, J.

It does not appear that any question decisive of the case, and duly submitted by counsel, has been overlooked by the court, or that the decision is in conflict with an express statute, or with a controlling decision to-which the attention of the court was not drawn through neglect or inadvertence. A reargument, therefore, cannot be granted under the rules laid down and adhered to by this court. Curley v. Tomlinson, 5 Daly, 283. The-appellant seeks to present again to the court for further consideration the same points urged upon the argument of the appeal. The refusals of the referee to find as requested by defendant were before the court, and there is nothing to-show that the exceptions to such refusals were disregarded. The record shows that the facts as to which defendant requested findings were not supported"by uncontradicted evidence. The sum of $853.73 paid by Gillespie on August lltli were not paid in settlement of the bills mentioned in defendant’s fourth request, but were paid on another account, and credited at first by a mistake, which was afterwards rectified. The fourth finding of fact negatives the finding as requested by defendant, and brings before the court for review the same question which defendant’s exception raised, and which was the principal contention on the appeal. The general term considered and disposed of it. Motion denied, with $10 costs.

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Bluebook (online)

4 N.Y.S. 613, 23 N.Y. St. Rep. 58, 1889 N.Y. Misc. LEXIS 1628, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duncan-v-root-nyctcompl-1889.

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