Berger v. Jackson

BROWN, J.: On petition for rehearing, it is contended that the quotation in our original opinion from the case of People v. Molyneaux is not contained in the report of the case as handed down by the Court of Appeals of New York in 40 N.Y. 113, but does appear in the opinion of Gilbert, J., of the Supreme Court of New York, as the decision of that Court in the same case, as reported in 53 Barber, 9. The writer, a few days after our original opinion was handed down, discovered this error and corrected the citation in the original opinion on file in the Clerk’s office so as to show that the case was reported in both 40 N.Y. Rep., 113 and 53 Barber, 9. After the decision of the New York Supreme Court, 53 Barber, 9, was handed down, the case was reviewed by the New York Court of Appeals, and the decision of the lower court, the appellate division of the Supreme Court, as reported in 53 Barber, 9, was affirmed. See 40 N.Y. 113. Appellee contends that the opinions of the Court of Appeals in the Molyneaux case, or at least one of them, is or are, inconsistent with the opinion of the Supreme Court from which our quotation was taken. This may be true to some extent as to the opinion of MURRAY, J., but we think that the opinion of HUNT, C. J., which appears to be the main opinion in the case, is strongly confirmatory of the opinion the New York Supreme Court from which we quoted. HUNT. C. J., among other things says: “Those headings are not titles of the acts, but are parts of the statute, limiting and defining their effects.” After due consideration of the petition for rehearing as a whole, we are not convinced that our original opinion was erroneous. Petition for rehearing denied. CHAPMAN, C. J., THOMAS and SEBRING, JJ., concur.