100 N.E. 414 | NY | 1912
On this motion our attention is called to the statement in the opinion handed down on the appeal that "The court refused to find, and there was no uncontradicted evidence showing that it was possible for the defendant to procure any other supply of better water within any reasonable limit of expenditure," and to the fact that this statement is inaccurate. It is inaccurate. Because of the specific refusal of the court to find these facts, there was inadvertently overlooked an omnibus finding that all of the allegations of the complaint, with certain exceptions, were true, and that these allegations in a somewhat voluminous complaint included the one "That there was an abundant supply of pure and wholesome water which the defendant by the use of reasonable diligence could obtain and supply to the citizens of Long Island City at a reasonable charge therefor, and more especially to the plaintiff." This statement in the opinion, however, is not at all essential to the conclusions which we reached. Under the findings which were made as to the character and general usefulness of the water supplied by the defendant we do not think that the latter could be held liable in this action because it did not go forth to secure a new supply for plaintiff's benefit even though this could be done at a reasonable expense.
The motion for a re-argument must be denied, with ten dollars costs.
CULLEN, Ch. J., GRAY, VANN, WILLARD BARTLETT, CHASE and COLLIN, JJ., concur.
Motion denied. *750
