204 N.Y. 586 | NY | 1912
Sometime after the decision in this court of the appeal in the case of Losey v. Stanley *587
(
The amendment of 1897 could in no way affect the decision in this case, because the owners of the estate in remainder herein have, as stated in the opinion, "by answer in the proceeding and by consistent protest and argument in all the courts objected to the sale proposed by the order in this proceeding." Said section 87 (now section 107 of the Real Property Law, chapter 52, Laws of 1909) was amended by chapter 242 of the Laws of 1907 by omitting from the provision above quoted the words, "shall not appear therein and object to the granting of such order," and by changing therein the words "having been made parties" to "have been made parties."
The amendment of 1907 took effect April 30, 1907, a short time prior to the commencement of this proceeding. While the briefs of counsel herein in referring to the statute did note that it was amended in 1907 the language or effect of such amendment was in no way called to the attention of the court either by the briefs or oral argument of counsel and it was not taken into account by me when I made the statement in the opinion as follows: "We think that the order was without authority under the will or by statute." Such amendment is specifically called to our attention by this motion for *588
re-argument. A further examination of the record convinces us that if the amendment of 1907 has the effect claimed by counsel for the respondent nevertheless the decision on this appeal should not be changed. This further statement is made for the purpose of expressly disclaiming that the language used in the opinion reported herein in
The motion for re-argument should be denied, without costs.
CULLEN, Ch. J., GRAY, HAIGHT, WERNER, WILLARD BARTLETT and COLLIN, JJ., concur.
Motion for re-argument denied.