67 N.Y.S. 628 | N.Y. App. Div. | 1900
We are satisfied from the record in this case that there was a misapprehension as to the rights of the parties before the court at the time of the trial, and that probable injustice has resulted from such misapprehension. We are of the opinion that this situation can only be completely remedied by a retrial of all the issues involved in the case. The defendants have taken no exception entitling them as a matter of right to a retrial as to their counterclaim, which we might possibly grant as a matter of favor upon their appeal from the order denying the motion for new trial. Our conclusion, therefore, is that, if the defendants will stipulate to agree to a reversal of the whole judgment, the same will be reversed, without costs to either party; if not, the order denying the motion for a new trial will be affirmed, with costs.
