| NY | Jan 20, 1885
Agree to affirm; no opinion.
All concur.
Judgment affirmed.
On a motion subsequently made for re-argument the following mem. was handed down:
"The motion for a re-argument in this case seems, from the points of the counsel for the appellant, to have been made under the impression that because the affirmance was not stated to be on the opinion of the court below, the ground upon which that court based its decision was impliedly overruled, and some different ground must be assumed to have been taken in this court.
This is a misapprehension. The affirmance in this court was substantially on the ground stated in the opinion below, of a misjoinder of alleged causes of action by making Close a party defendant, and demanding against him relief which was independent of the questions raised by the complaint in respect to the other defendants.
The questions raised on the demurrers were very narrow and not free from difficulty, though they might very easily have been obviated by amendment, but after having given the case considerable attention we were of opinion that the conclusion reached by the court below should be sustained. *627
When we affirm without an opinion, and without formally adopting the opinion below, it is not to be understood that the affirmance is on grounds substantially different from those taken below.
In case of such a difference, we should deem it proper to state the reasons for affirmance.
The motion should be denied, with $10 costs."
All concur.
Motion denied.