Charles H. Vroom, Respondent, v. John Tilly et al., Appellants

Charles H. Vroom, Respondent, v. John Tilly et al., Appellants. (Submitted April 30, 1906; decided May 8, 1906.) Motion for re-argument. (See 184 N. Y. 168.) Henry J. McCormick for motion. S. Le Roy Ackerly opposed. [MAJORITY — Haight, J.] Haight, J. The motion for a re-argument should be denied. The question as to whether Joseph Vroom was a non-resident of the state at the time the oysters were planted and cultivated does not appear to have been raised upon the trial by any finding of fact or request to find. It does not appear to have been raised before the Appellate Division or discussed before us upon the argument of the appeal. While it appears from the testimony that Joseph Yroom at the time of the trial was a resident of South Norwalk, Connecticut, it does not appear that he was a non-resident of this state at the time the oysters were planted. As to the plaintiff Charles H. Yroom no claim is now made but that he is, and during all the time intervening since the planting of the oysters was, a resident of this state. He was jointly interested in the planting with Joseph Yroom, who has assigned his interest to the plaintiff. We think, therefore, it is now too late to raise the question with reference to the residence of Joseph Yroom. Cullen, Ch. J., Gray, Edward T. Bartlett, Vann, Willard Bartlett and Chase, JJ., concur. Motion denied, with ten dollars costs.