Los Angeles Investment Securities Corp. v. Joslyn

Appeal from an order of the Albany Special Term of the Supreme Court which vacated and set aside judgments entered in the Albany county clerk’s office on December 20, 1935, and permitted defendants-respondents to serve supplemental answers and granted a new trial of the action on the ground of newly-discovered evidence. Appellant recovered the original judgments in the Supreme Court of Albany county. (158 Misc. 164.) They were affirmed by this court (254 App. Div. 711) and by the Court of Appeals (279 N. Y. 734). A motion for reargument in the Court of Appeals was denied. (280 N. Y. 570.) The order appealed from was granted upon the theory that the California cases of Dietzel v. Anger (8 Cal. [2d] 373; 65 P. 803) and Marble v. Hasberg (8 Cal. [2d] 770; 65 P. 806) established a new rule of law which applied to these judgments and to the causes of action of the plaintiff-appellant. The California cases were each decided on February 26, 1937, and in no wise changed the California rule as applied to this case and the trust agreement here involved. This ease was decided by this court as above, mentioned on April 27, 1938, and by the Court of Appeals on January 3, 1939.. The new California cases were used before the Court of Appeals both on the argument and reargument. Order reversed, on the law and facts, with ten dollars’, costs and disbursements, and motion denied, with ten dollars costs. Hill, P. J., Crapser and Bliss, JJ., concur; Heffernan, J., concurs for reversal as a matter of law; Foster, J., concurs solely on the law and on the ground that the California cases were apparently considered by the Court of Appeals [See post, p. 821.]