154 N.Y. 493 | NY | 1897
This motion for a reargument is based on the possibility that the court may have overlooked one of the points presented both orally and in writing on the argument. This possibility is founded on the fact that the point is not discussed by the court in its opinion, but, as we have held, that fact gives rise to no such inference in any case, and in this case it is expressly stated that the reason for not adopting the opinion of the Appellate Division, which, as reported, discusses the point supposed to have been overlooked, was to avert further litigation by deciding a question that, although presented by the record, was not decided by that learned court. (Kamp v. Kamp,
As the plaintiff was organized in 1896, and succeeded to the rights of a company organized in 1893, the Constitution and Railroad Law as existing since the latter date control its rights, whatever effect they may have upon organizations of an earlier date. The Railroad Law is the only authority for this proceeding, and the plaintiff, as the moving party in the effort to acquire certain rights through the power of eminent domain, was bound to proceed strictly in accordance with its requirements. (Matter of Kings County Elevated Railway Co.,
As we aimed to demonstrate in the opinion giving our reasons for affirming the judgment, the consents of the local authorities and the abutting owners to the use of the intervening track of the defendant by the plaintiff are, by virtue of section
It is also suggested that our opinion has raised apprehension as to its effect as a precedent upon railroad leases and traffic agreements, of which there are said to be many now in force all over the state. It was not our intention to decide any case but the one before us, which simply involved the standing of the plaintiff to make the application in question, and our opinion should be read in the light of that purpose. If, as sometimes happens, broader statements were made by way of argument or otherwise than were essential to the decision of the questions presented, they are the dicta of the writer of the opinion and not the decision of the court. A judicial opinion, like evidence, is only binding so far as it is relevant, and when it wanders from the point at issue it no longer has force as an official utterance. The failure to read the opinions of courts with this fact in mind gives rise to much fruitless litigation.
The motion should be denied.
All concur, except GRAY and O'BRIEN, JJ., not voting.
Motion denied. *496