
    Frank Irvine, an Infant, by John Irvine, his Guardian ad Litem, Respondent, v. The F. H. Palmer Manufacturing Company, Appellant.
    
      Beargument — when granted.
    
    In order that a motion for a reargument should succeed, it must appear that some question decisive of the case was presented by the counsel which the court in its decision has overlooked.
    Motion by the respondent, Frank Irvine, an infant, by John Irvine, his guardian ad litem, for a reargument of the appeal pending in the Appellate Division of the Supreme Court for the second judicial department.
    The appeal was decided upon the merits, at the February term of the court. (See 2 App. Div. 69.)
    
      Charles J. Patterson, for the motion.
    
      W. C. Beecher, opposed.
   Hatch, J.:

In order for a motion of this character to succeed, it must appear that some question, decisive of the case, was presented by the counsel which the court in its decision has overlooked. (Mount v. Mitchell, 32 N. Y. 102; Fosdick v. Town of Hempstead, 126 id. 651.)

The learned counsel for plaintiff claims that he has brought this case within the rule, and that the court has in fact overlooked evidence decisive of the case in plaintiff’s favor, and has clearly misconceived the testimony of plaintiff and that of other witnesses -in the ease. The first claim which plaintiff makes is that the court assumed that plaintiff testified that, on the second day, “ the ptinch came down.about an inch and then returned to its place,” and that, with this as a basis, the court proceeded to a conclusion that the testimony was opposed to the laws of mechanics, as applied to the principle upon which the machine was operated. In opposition to this view plaintiff asserts that no such testimony was given, and that its only basis was a statement contained in the appellant’s brief. We read from the record of plaintiff’s testimony, submitted on appeal: “ On Saturday morning I heard a click, and the punch dropped about an inch. That was only about a quarter of its normal drop. * * * I spoke to Mr. Clark on Friday about the punch having come down without pressure. It occurred on Friday once and once on Saturday. I knew of the punch coming down without pressure only twice; on those occasions it returned to its natural place and- didn’t -come down again without pressure.” There is no testimony that we are able to find from which it appears that any means were used at any time to restore the punch to its normal place when at rest after automatic action, but, on the contrary, it appears that its restoration to its place was as automatic as its displacement, and when the plaintiff said that on those occasions when it fell, it returned to its natural place, we understand him to say that it did so .automatically and his evidence is susceptible of no other reasonable construction. We are, therefore, unable to agree with plaintiff’s con-' struction in tins regard. It is true that the witness Burke says that sometimes automatic action will take the punch half way down, and we can see, from the operation of the machine and the principle of its construction, that if the clutch caught but slightly and was then released, it might only carry the punch a part of the way. But such action could by no possibility automatically restore the punch again to its place, which is the essential fact. The learned counsel for plaintiff concurs in this view, as he says in his brief upon this motion : “ It is quite true that the punch could not drop an inch and then return to its place.” We must conclude that we have overlooked nothing and misconceived nothing respecting this proposition.

The opinion stated that it was “ established that the machine had been in use but about a year; that six months prior to the injury the manufacturer of the machine examined it and found it at the time in a safe condition.” It was testified to by the defendant that the machine was practically new and had been in use about a year. No issue was raised upon the truthfulness of this testimony respecting the length of time during which the machine in question had been in use. Indeed, the issue raised in this respect, and which furnished the contest upon the trial, was whether the part produced in court was in fact defective, and not whether it had been in use a year or less or more. So that in no view, whether the statement be right or wrong, was the length of use decisive of the question involved. The last sentence of' the quoted paragraph was a clear misconception on the part of the court of the evidence, and plaintiff’s criticism of that portion must be sustained. Is the determination in this regard decisive of the question presented on this appeal ? If so, the motion should be granted; if not, the plaintiff is not within the rule. I think the question must be answered in the negative. The inspector of the manufacturer of the ■machine examined the machine six months before the trial, but in fact this was some eight months after the injury. But, as we have before observed, the issue of the trial upon this point, which was accepted by both parties, turned upon the question whether or no the part of the machine produced upon the trial was defective. It is at once apparent that if the part was in fact defective, whether the inspector examined the machine six months prior to the accident or after the accident could not avail as against the present condition of the machine produced in court, which was accepted as the test. For if this part was then found defective his examination could not avail against it; if perfect, then his statement did not add to the fact, for it was the machine itself that spoke, and not the witness’ examination of it some months before, although such testimony was pertinent, as bearing upon the negligence of the defendant, and the character of the machine when the examination was made. It is sufficient now to say that the assumption was not decisive of the controversy. That was based upon plaintiff’s testimony, the part and model of the machine produced, and the principle of its construction and operation. So far as the part of the machine produced is concerned, we have the fact that a part and model were produced at the trial; that the whole was introduced in evidence at the suggestion of plaintiff’s counsel; that a part and model were produced before the court upon the argument before us, accompanied by the statement that they were the-same part and model used upon the trial. Nothing appears upon this motion to show that they were not the same, and in support of the fact is the affidavit of the attorney and the counsel who tried and argued the case, that the part and model produced before us were the same which were introduced in evidence upon the trial. The part and model must, therefore, be regarded as sufficiently identified.

The affirmance, by the Court • of Appeals (149 N. Y. 569), of Van Sickel v. Ilsley (75 Hun, 537) does not affect the question now before us. We recognized before, we recognize now, that if this case rested upon the oral statements of witnesses • the decision would be the same as in that case. But here the part of the machine is produced before us and we are able to see, from the testimony and the machine itself, that plaintiff’s-version of how this machine operated cannot be sustained without the violation of mechanical laws. I have read carefully plaintiff’s-statement of facts in the Ilsley case, and do not see that it conflicts with the conclusion reached herein. This class of cases is to be. considered and disposed of upon the particular facts which are found present in the record of each. Expressions may be found in one case which are in apparent conflict with another. But the language used must be construed as having regard to the particular facts of the case under consideration, and strictly limited to that alone. (The People ex rel. Hecker-Jones- Jewell Milling Company v. Barker et al., 147 N. Y. 31-38.)

Each case submitted receives our careful consideration, and this one is no exception. The earnest insistance of counsel for plaintiff, in support of his motion, has led to this somewhat lengthy expression, partially as an assurance to him, and to others who may be similarly situated, that errors which may be committed we shall hasten to correct when properly called to our attention, yet that mere variance of view does not entitle a party to a reargument of his case.

We find no ground upon which to grant a reargument in this case. Motion denied, with ten dollars costs and disbursements.

All concurred.

Motion for reargument denied; ten dollars costs and disbursements.  