
    General Term—Third Department.
    Filed November 30, 1891.
    James Smith, Executor, App’lt, v. Frank Pelott, Resp’t.
    P. R. Chapman, for app’lt; H. D. Bailey, for resp’t.
   Mayham, J.

Motion for re-argument of this appeal. At the last general term of this court, the judgment in this action was affirmed on the argument without any written opinion by the court. The appellant now moves for a re-argument on the ground that the judgment appealed from was in the nature of a judgment of nonsuit by the referee, and that there is some evidence on the part of the plaintiff raising a question of fact, and that the case should, therefore, have been considered upon the merits by the referee.

Without passing upon the merits of the case, we think, within the case of Forbes v. Chichester, 125 N. Y., 769 ; 36 St. Rep., 248, and upon the facts appearing upon this motion, there should be a re-argument of this appeal. Judgment of affirmance vacated.

Re-argument allowed with ten dollars costs of this motion to abide the event of the appeal.

Learned, P. J., and Landon, J., concur.  