Opinion
March, 1932.
Order denying motion for a rehearing affirmed, with ten dollars costs and disbursements. No opinion.
Young, Carswell, Tompkins and Davis, JJ., concur;
I think the defendants, under all the circumstances, are not chargeable with delay. Furthermore, the various interests involved in the failure of the Bank of United States are so important that no ordinary technicality of practice should stand in the way of a determination upon the merits of the present case, which, with the Maged case ( Matter of Maged v. Bank of United States, 234 App. Div. 295, decided by this court on January 8, 1932) and perhaps other cases growing out of the bank's failure, may establish very important precedents. I also think there is no reason for believing that defendants are acting in bad faith in making this motion. At least I cannot find any evidence of lack of good faith. As to excuse for delay, see Cohen's affidavit (Papers on Appeal, fol. 38). With reference to the statement that defendants are bound by the stipulation agreeing to the facts, I think the court has power to grant the relief requested "in the furtherance of justice. Its power to do so * * * is inherent." ( Ladd v. Stevenson, 112 N.Y. 325, 332.) All defendants ask is a rehearing, which I assume will give them the opportunity of presenting our recent decision in the Maged case as a precedent. That opportunity, in my opinion, should be granted.