
    Smith v. Pelott et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    November 30, 1891.)
    Motion for reargument.
    Action by James M. Smith, as executor, against Prank Pelott and others. A judgment dismissing the complaint was affirmed on appeal. 15 N. Y. Supp. 972. Plaintiff moves for a reargument.
    Motion granted.
    Argued before Learned, P. J., and Landon and Mayham, JJ.
    P. R. Chapman, for appellant. H. D. Bailey, for respondent.
   Mayham, J.

Motion for reargument of this appeal. At the last general term of this court this judgment in this action was affirmed on the argument, without any written opinion by the court. 15 N. Y. Supp. 972. The appellant now moves for a reargument, 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, 26 N. E. Rep. 914, and upon the facts appearing upon this motion, there should be a reargument of this appeal. Judgment of affirmance vacated. Reargument allowed, with $10 costs of this motion to abide the event of the appeal. All concur.  