
    Thomas Nelson, Appellant, v. Edward S. Hatch, Respondent, Impleaded with Lyman E. Warren.
    
      Motion for a rean'gument — not granted upon grounds not appearing in the ream'd on appeal.
    
    A motion for a reargument at the Appellate Division, based upon ah affidavit, stating that the case was tried and disposed of below upon a concession by the plaintiff that only a single specified question was: presented by the litigation, and that the Appellate Division did not confine itself to that question, will not he granted where the record on appeal does not show that such question was the "only one litigated.
    Motion by the respondent, Edward S. Hatch, for a reargument of the appeal by the plaintiff from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 18th day of May, 1899, upon the report of a referee.
    The Appellate Division reversed the judgment and ordered a new trial before another referee. The opinion upon such appeal is reported in volume 56, Appellate Division, page 149.
    
      Thomas Darlington, for the appellant.
    
      William G. Trull, for the respondent.
   Per Curiam :

The ground upon which a reargument is asked is that the court in making its decision erroneously stated the facts and based its determination .upon a cause of action not tried before the referee. There is submitted in connection with the motion an affidavit of the defendant Hatch which tends to establish that the case was tried and disposed of by the referee upon a concession by the plaintiff that the cause of action set forth in the complaint was for a rescission of the contract, and that this was the only question litigated- upon the trial and presentéd to the referee for his determination by common consent of the parties.

Assuming this to be true, it can-not be made the basis for granting .a reargument of the case. It is not pretended that the record submitted upon the appeal contains such matter, nor is there anything from which such condition can be spelled out from all that appears therein. It cannot be expected that the court can or will dispose of questions which the record does not disclose. Controversies are to be decided based upon the facts appearing in the record, and not upon matters extrinsic whether they exist or not. Besides, it is denied in the opposing affidavit that the ground relied upon was conceded to be the only issue presented to the referee, and it is claimed therein that the plaintiff sought recovery solely upon the ground of a breach of contract. The utter futility, therefore, of attempting to save rights which a party claims exist, which are not made to appear in the record submitted upon the appeal, is clearly apparent. If this motion should now be granted for this reason it is evident that the court would have no record before it upon which it could base a determination upon this question, and before the defendant could bring the question properly to the attention of the court it would require a new case to be made and settled. And were this practice once to obtain it would produce hopeless confusion, and neither courts nor litigants could ever be certain that any litigation was at an end even though apparently finally decided.

So far as the motion seeks to raise other questions it is enough to say that they were all examined and a conclusion reached adverse to the contention of the defendant.

The motion for a reargument should be -denied, with ten dollars ■costs and disbursements.

Present—Van Brunt, P. J., O’Brien, Ingraham, McLaughlin and Hatch, JJ.

Motion denied, with ten dollars costs and disbursements.  