Patrick Cudahy et al., Appellants, v. Clark D. Rhinehart, as Sheriff, etc., Respondent

Patrick Cudahy et al., Appellants, v. Clark D. Rhinehart, as Sheriff, etc., Respondent. Where a General Term order of reversal did not state that it was made upon the facts, and upon appeal to this court the counsel for the respondent proceeded to argument without making application to postpone to enable him to procure an amendment of the order, and after the appeal was decided against him made application to the General Term and obtained an amendment by inserting such a statement, held, that a reargument would not be granted upon the amended order; that the respondent was concluded by his election to have the case decided on the question of law. (Submitted May 23, 1892; decided June 7, 1892.) This was a motion for a reargument. The ease is reported ante, page 248. The following is the opinion in full: “ The counsel for the defendant was advised on the argument that as the order of reversal did not show that it was made on the facts it would be presumed that the reversal was on the law only, and that to sustain the order it must appear that some error of law was committed by the trial court. “ The counsel proceeded with the argument, making no application to postpone the case to enable him to have the order amended, and it was not until after the appeal was decided against him and' tho order of the General Term was reversed, that he made application to the General Term for an amendment of its order by inserting therein a statement that the reversal was on the facts. “ The application for a reargument upon the amended order ought not, we think, to be granted. The counsel took the risk of a decision against him on the order as it stood, with knowledge of the situation, and we think he should be concluded by his election to have the case decided on the questions of law in the record. “ Motion denied, without costs.” Charles Putzel for motion. Poe & MacTclin opposed. [MAJORITY — Per curium] Per curium opinion for denial of motion. All concur. Motion denied.