
    Patrick Cudahy et al., Appellants, v. Clark D. Rinehart, as Sheriff, etc., Respondent.
    
      Court of Appeals,
    
    
      June 7, 1892.
    
      Appeal. Beargument.—Where a general term order of reversal did not state that it was made upon the facts, and upon appeal to the court of appeals, the counsel for the respondents, after he was advised that it would be presumed that the reversal was on the law only, proceeded to argument without making application to postpone the case to enable him to procure an amendment of the order, but after the appeal was decided against him made application to the general term and obtained an amendment by inserting such a statement, it was held that a reargument would not be granted upon the amended order, and that the respondent was concluded by his election to have the case decided on the question of law:.
    'Motion for reargument.'
    
      Charles Putzel, for motion.
    
      Roe & Macklin, opposed.
   Per Curiam.

—The counsel for the defendant was advised on the argument that, as the order of reversal did not show that it was made on the facts, it would be presumed that the reversal was on the law only, and that to sustain the order it must appear that some error of law was committed by the trial court.

The counsel proceeded with the argument, making no application to postpone the case to enable him to have the order amended, and it was not until after the appeal was decided against him and the order of the general term was reversed, that he made application to the general term for an amendment of its order by inserting therein a statement that the reversal was on the facts.

The application for a reargument upon the amended order ought not, we,think, to be granted. The counsel took the risk of a decision against him on the order as it stood, with knowledge of the situation, and we think he should be concluded by his election to have the case decided on the questions of law in the record.

Motion denied, without costs.

All concur.  