
    Andrew J. Dexter, Resp’t, v. William Ivins et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed May 3, 1892.)
    
    Motion for reargument
    
      James Q. Burnett and Thos. F. Byrne, for app’lts; James & Thos. JB. Troy, for resp’t.
    
      
       See 44 St. Rep., 244.
    
   O’Brien, J.

The learned counsel for the defendants is mistaken in supposing that the exceptions which are made the basis for this motion for reargument were overlooked in the decision of the case. On the contrary, they were fully and carefully considered, though not referred to in the opinion. The counsel requested the court to charge in substance that the evidence established a discharge as matter of law. This was properly refused,, as the question was for the jury upon the letters that passed between the parties and all the circumstances of the case. If the defendants intended to discharge the plaintiff, they could have-said so in words not liable to be misunderstood. Upon the evidence the court could not have held, as matter of law, that the-plaintiff was discharged, and understood that he was, or that the plaintiff intended to terminate the contract, while as a' matter of fact such a conclusion might have been reached by the jury. The remark which the learned judge made after refusing the request was undoubtedly incorrect. But upon the decision of the appeal we thought, as we still think, that it did not prejudice the defendants. When the whole charge is read, it is quite apparent that the only questions which the court submitted to the jury were whether the plaintiff had been discharged, and if not, then whether he held himself in .readiness at all times to perform the contract These issues were properly in the case upon the pleadings and evidence.

The motion should be denied.

All concur.  