Hand v. Rogers

16 Misc. 364, 38 N.Y.S. 2, 74 N.Y. St. Rep. 370

Opinion

Per Curiam.

The practice is settled that no motion for resrgmnent will he entertained, except upon papers showing clearly:

(1) That some question decisive of the case, and. duly sub- . mitted by counsel, has been overlooked by the court; or

(2) That the decision is in conflict with an express statute or with a controlling decision, either overlooked by the court, or to which its attention was not drawn through the inadvertence, of counsel (Mount v. Mitchell, 32 N. Y. 702), followed by the Common Pleas as a rule of practice in reference to. appeals from the City and District Courts (Curley v. Tomlinson, 5 Daly, 283. And see Marine Bank v. Nat. City Bank, 59 N. Y. 67, 73); or

(3) That since the decision by- this term, the Court of Appeals or the Appellate Division has decided adversely the precise question involved.

As the application does not fall within any of these rules, it must he denied, with $10 costs. _____

Present: Daly, P. J., MoAdam and Bischoee, JJ.

' Motion denied, with $10 costs.