
    Ephraim C. Gates et al., Appellants, v. Ellen Williams, Impleaded, Respondent.
    (New York Common Pleas
    General Term,
    December, 1894.)
    A reargument will not be granted for the purpose of allowing the respondent to raise the objection that the judgment appealed from was not entered at the time the appeal was taken, where the return on appeal stated that the “judgment was in due form entered,” and it appears that it was entered at the time the appeal was argued.
    A defect in the return in failing to set forth the judgment appealed from in fuE is waived by a failure of the, respondent to move to amend, the return in that respect.
    Respondent’s motion for reargument of the appeal from the order of the City Court of Rew York, made at General Term, which reversed a judgment rendered at trial term, and granted a new trial. For the opinion of this court at the time of the decision of the appeal, see 9 Mise. Rep. 176.
    
      
      James A. Peering, for motion.
    
      George W. /Stephens, opposed.
   Per Ouriam.

After reversal by this court of the order of the court below, the respondent for the first time objects to the jurisdiction of this court to hear and determine the appeal, and leave to reargue the appeal is applied for to enable her to interpose the objection which is predicated exclusively of the fact that, as alleged, judgment of reversal was not entered" in the court below on the order appealed from and here reversed at the time when the appeal was taken. ’

From the affidavit of counsel for the appellants, submitted on this motion, it appears that judgment of reversal was entered in the court below when the appeal from the order granting a new trial was argued, submitted and determined.

The return of the court below did not include the judgment of reversal in extenso, but, if the return was defective in that respect, the respondent could have had it amended upon proper application. Faffing such an application, she must be deemed to have waived the defect.

This court was justified in entertaining and determining the appeal, since from the return of the court below, certified as required, it appears that “ judgment was in due form entered on the order of reversal and granting a new trial.

Motion for reargument denied, with ten dollars costs.

Present: Daly, Ch. J., Bischoff and Pryor, JJ.

Motion denied, with ten dollars costs.  