delivered the opinion of the court.
In the case of Walter and others against Ward, a motion was made by the defendant for a reargument before a full court for the following reasons: First, because of the general interest in the question of law involved in the case secondly, because no opinion was pronounced by the court as to the law in the case ; thirdly, because Mr. Justice Hagner was disqualified to hear the same in General Term. It' should be remarked here, that Mr. Justice Hagner declined to participate in the consideration of this motion. When a case argued before us involves a question of law of great public interest and of great difficulty, we have sometimes directed a rehearing before the full court. We have done so recently in the case of Justh vs. Holliday, which involves the legality of the purchase and sale of stocks on speculation, and perhaps in one or two other cases. But the present case is not of that character. It does not involve any question of law which is litigated or vexed, or about which
The second reason assigned is, because no opinion was ‘pronounced by the court as to the law of the case. No opinion was pronounced, simply because there was no discussion or dispute about the law of the case ; hence we were not called upon to render an opinion, and do not now feel 'called upon to do it.
The third reason assigned was, because Mr. Justice Hagner was disqualified to hear the case in General Term. That is quite a mistake. This was not an appeal from any order or decree rendered by Mr. Justice Hagner. He had no previous connection with the case, except to grant the preliminary injunction upon ex parte affidavits. Nobody imagines that the judge at Special Term who.grants the preliminary injunction, would be thereby disqualified to hear the case at final hearing on pleadings and proof. Such a thing was never heard of. When the case was certified
At the same time that this motion was made, there was also a motion made on the part of the complainant to amend the decree by allowing costs. We had passed over that subject in giving the decree in the first instance, not. being advised what the disposition of the parties was, and we did not know but that they would consent to divide the costs between them. Undoubtedly, the complainants are^ legally entitled to recover costs, if insisted upon. There was an understanding between the counsel that the cost of printing the record was to be divided. But the motion is made that the clerk allow the complainants their' regular costs, to be taxed by the clerk, in the case, in addition to one-half of the cost of printing the record, which has been paid by the defendant, and which the complainants agreed to refund to him. We think that motion must be granted,, and that disposes of the case.