William E. Burke, Respondent, v. The Continental Insurance Company of the City of New York, Appellant

William E. Burke, Respondent, v. The Continental Insurance Company of the City of New York, Appellant. Appeal. The fact that certain points made upon the argument of a case in the Court of Appeals are not discussed in the opinion of the court upon the decision thereof does not warrant the conclusion that they were overlooked. (Submitted March 5, 1906; decided March 13, 1906.) Motion for re-argument. (See 184 N. Y. 77.) Moses Shire for motion. J. If. Metcalf and Clarence M. Bushnell opposed. [MAJORITY — Per Curiam.] Per Curiam. Our opinion- reversing the judgments below rested on the single point that the Independent Company was vested with the title and entire insurable interest in this property in case of loss by fire; that it was its duty under the express provisions of the agreement to take out the policy of insurance in its name, the Cunningham Company paying the premiums. The plaintiff bases this motion for re-argument on the ground that the court overlooked the fourth finding of fact, which reads as follows: “ That after said contract was entered into, and before the fire hereinafter referred to, L. Springer Cunningham, then treasurer and manager of the Cunningham Company, and one Sayre, then vice-president and treasurer of the Independent Company, on behalf of their respective companies, entered into a parol agreement whereby the said Cunningham Company assumed liability to the Independent Company for any loss by fire to the property described in said policy of insurance to the amount to which this defendant would be liable to the insured under said policy of insurance.” It is difficult to understand how the counsel for plaintiff reaches the conclusion that the court overlooked this finding of fact when it was fully discussed in both briefs. The fact that certain points made upon argument are not discussed in the opinion does not warrant the conclusion that they were overlooked. The fourth finding of fact is without evidence to support it, and the motion for re-argument should be denied, with ten dollars costs. Cullen, Ch. J., Gray, O’Brien, Edward T. Bartlett, Werner, Hiscooic and Chase, JJ., concur. Motion denied.