Opinion
Argued December 5th, 1871
Decided December 12th, 1871
E. Terry, for motion.
W.J. Foster, opposed.
This case differs from that of Vose v. Cockroft ( 44 N.Y., 415), upon which the appellant founds his motion for a re-argument. In that case the objection, that the complaint showed no cause of action, was not taken either at Special or General Term, and the judgment was affirmed at General Term. In the present case, the objection was taken at General Term, and the judgment was there reversed. The defect was incapable of being cured by amendment, it appearing, on the face of the complaint, that the bond sued upon had been taken by a judicial officer in a proceeding of which he had no jurisdiction, and that it was, therefore, absolutely void. We held, that in such a case the court at General Term had power to reverse for the error appearing upon the record. Whether, in the absence of any adjudication upon the point by the General Term, this court would have taken cognizance of it, was not determined.
We see no ground for ordering a re-argument, and the motion must be denied with ten dollars costs.
All concur. Motion denied.