Opinion
January Term, 1900.
Motion for reargument denied, without costs.
The papers in the Bronxville case, eliminating the Granger case, do not show that there was any question of failure to obtain consents of property owners for the construction of the road. On the contrary, it appears by the averment of the answer that the defendant possessed such consents, and this was not controverted by the plaintiff. But the defendant, in its answering papers, and in opposition to the motion for the injunction, referred to all the papers and proceedings in the case of Granger. Such papers were made part of the record upon which the appeal was heard in this court; and while it is more than doubtful whether the recital in the order granting the injunction is sufficient to show that these papers were considered by the court at Special Term, yet, upon the argument in this court, they were made a part of the record, were urged upon the attention of the court by the counsel for the appellant, and were referred to in his affidavit read upon the motion. In these papers, it appears that the consents were challenged in substantially the same for and manner as in the Dusenberry case. ( Dusenberry v. N.Y., W. C. Traction Co., 46 App. Div. 267). Consequently, the same objection is presented to the granting of this motion as was announced by this court in its previous decision denying the motion for leave to appeal to the Court of Appeals. The condition being the same, the result must be the same. The motion should, therefore, be denied. All concurred, except Hirschberg, J., taking no part.