McArthur v. Gordon

36 N.Y. St. Rep. 329

Opinion

Per Curiam.

We reversed the judgment below on a point not argued before us, and, so far as we can learn from the record, not much, if at all considered at any stage of the case, and there is a wide divergence of views among the members of this court as to the point, and, therefore, without a critical examination of the authorities to which the learned counsel for the plaintiff has called our attention, and without forming any judgment upon them, we think that justice requires a reargument of the case. Upon the reargument, besides the point just mentioned, and any other points which the counsel for either party may desire to bring to the attention of the court, we invite attention to the following points, to wit, upon the assumption that Larmouth was not bound to take his support upon the farm :

1. Was the plaintiff entitled to recover the interest awarded to him?

2. Were the defendants in default in not furnishing Larmouth with support elsewhere while he and the plaintiff were repudiating the trust and in the absence of any demand for such support ?

3. Was the plaintiff entitled to recover the net rental value' of the farm, or .only the amount needed for Larmouth’s support ?

4. In the absence of any proof that Larmouth was indebted for his support to any one, was the plaintiff entitled to recover the large sum awarded to-him ?

5. Was the plaintiff entitled to take the fund out of the hands of the trustee and administer it or dispose of it, the trustee not having been removed?

Motion granted.

All concur.