Opinion
December, 1911.
This is a motion for reargument. The motion papers serve to emphasize the correctness of the position taken by this court upon the decision of the appeal, viz., that upon this record it does not appear that Allison M. Archer had any interest in the real property acquired and purchased by the executors and trustees under the will of Michael A. Archer, which could be deemed to be subject to the lien of the mortgage for the foreclosure of which this action is brought. The reference in the opinion to the conditions which might exist if the testator had a lien, by way of mortgage, upon said property, which mortgage had been foreclosed, was made only for purposes of illustration. Reiterating the statement contained in the opinion, "There is nothing in the will, which, in express terms, authorizes said executors and trustees to acquire and purchase real property for the benefit of the estate. There is no evidence showing how they acquired the same, or for what particular purpose," counsel for respondent, upon this motion, submits an affidavit attempting to show how such property was acquired, and asserts that if in the original record on appeal there is lack of such evidence, it is "solely because no issue upon this question was raised in the court below, or tried, because the facts, as above stated, were well known to and acquiesced in by all parties." The pleadings were sufficient to raise the question, and the affidavit submitted in opposition to this motion would indicate that the "facts, as above stated," are not acquiesced in by all parties, and particularly by the parties appellant herein. An appellate court must deal only with the record presented to it, and if there has been an omission of necessary evidence, such evidence may not be supplied in the form of an affidavit submitted on a motion for a reargument. If respondents are entitled to any relief, it must be by application to the court at Special Term for permission to open the case and submit additional evidence. The motion for reargument must be denied, without prejudice to such application. Jenks, P.J., Thomas, Carr, Woodward and Rich, JJ., concurred. Motion denied, with ten dollars costs.