Chatterton v. Chatterton , 54 N.Y.S. 515 ( 1898 )

HATCH, J.

The motion for a reargument should be denied. The main question for reargument presented by the moving party relates to the failure of the court to discuss the status of the defendant the Poughkeepsie Savings Bank in respect of the cause of action set forth in the complaint. If the prevailing opinion were in error upon this point, it would furnish no ground for a reargument. In fact, it clearly appeared that the point was considered .by the court, as it was referred to in the dissenting opinion of the presiding justice. It is evident, therefore, that the question was not overlooked, and under the authority of Mount v. Mitchell, 32 N. Y. 702, no ground for a re-argument appears in this regard. The omission of the prevailing opinion to discuss this question does not affect it, nor does it show that the point was necessarily overlooked. Fosdick v. Town of Hempstead, 126 N. Y. 651, 27 N. E. 382. If it were otherwise, the point would not be available to the demurring defendant. The Poughkeepsie Savings Bank does not demur to the complaint, and, so far as tiie demurring defendant is concerned, the complaint states a good cause of action. It was clearly within the power and right of the plaintiff to make all persons claiming or having any interest in the property affected by the action, whether as lienors or otherwise, parties thereto, in order that their rights might be determined, and they have their day in court to assert their claims. The Poughkeepsie Savings Bank acquires its lien by virtue of the power of sale contained in the will, which is sought to be made the subject of construction. As we view the case, therefore; its rights in the premises arise out of the transaction which is the subject of the action; and we see no reason why a motion for a reargument should be granted, or why leave to appeal to the court of appeals should be given. Comwell v. Clements, 89 Hun, 603, 34 N. Y. Supp. 998.

The motion should be denied. All concur.