39 N.Y.S. 245 | N.Y. App. Div. | 1896
In order for a motion of this character to succeed, it must appear that some question, decisive of the case, was presented by the counsel which the court in its decision has overlooked. (Mount v. Mitchell, 32 N. Y. 102; Fosdick v. Town of Hempstead, 126 id. 651.)
The learned counsel for plaintiff claims that he has brought this case within the rule, and that the court has in fact overlooked evidence decisive of the case in plaintiff’s favor, and has clearly misconceived the testimony of plaintiff and that of other witnesses
The opinion stated that it was “ established that the machine had been in use but about a year; that six months prior to the injury the manufacturer of the machine examined it and found it at the time
The affirmance, by the Court • of Appeals (149 N. Y. 569), of Van Sickel v. Ilsley (75 Hun, 537) does not affect the question now before us. We recognized before, we recognize now, that if this case rested upon the oral statements of witnesses • the decision would be the same as in that case. But here the part of the machine is produced before us and we are able to see, from the testimony and the machine itself, that plaintiff’s-version of how this machine operated cannot be sustained without the violation of mechanical laws. I have read carefully plaintiff’s-statement of facts in the Ilsley case, and do not see that it conflicts with the conclusion reached herein. This class of cases is to be. considered and disposed of upon the particular facts which are found present in the record of each. Expressions may be found in one case which are in apparent conflict with another. But the language used must be construed as having regard to the particular facts of the case under consideration, and strictly limited to that alone. (The People ex rel. Hecker-Jones- Jewell Milling Company v. Barker et al., 147 N. Y. 31-38.)
Each case submitted receives our careful consideration, and this one is no exception. The earnest insistance of counsel for plaintiff, in support of his motion, has led to this somewhat lengthy expression, partially as an assurance to him, and to others who may be similarly situated, that errors which may be committed we shall hasten to correct when properly called to our attention, yet that mere variance of view does not entitle a party to a reargument of his case.
We find no ground upon which to grant a reargument in this case. Motion denied, with ten dollars costs and disbursements.
All concurred.
Motion for reargument denied; ten dollars costs and disbursements.