Opinion
Submitted February 26, 1906
Decided March 6, 1906
Walter W. Magee for motion.
Thomas Hogan opposed.
The only ground upon which the respondent moves for a re-argument, so far as I can learn from the moving papers, is that the court failed to pass upon the question of negligence.
I think the learned corporation counsel is mistaken in that contention. It will be seen from the report of the case ( 183 N.Y. 395) that one of the opinions deals fully with the question as to whether there was proof of negligence on the part of the plaintiff sufficient to submit to the jury, and it was held there was. Three other judges concurred in the reversal of the Appellate Division and affirmance of the trial court. This was necessarily a vote on their part that the question of negligence was for the jury. The majority of the court differed among themselves on one point only, and that was whether the action was for a personal injury. That question was immaterial so long as it was held that the cause of action did not accrue till the appointment of the administratrix. The motion for a re-argument should be denied, with costs.
CULLEN, Ch. J., GRAY, EDWARD T. BARTLETT, HAIGHT, VANN and WERNER, JJ., concur.
Motion denied.