Dammert v. Osborn

• Decision Date: 23 January 1894
• Citation: 35 N.E. 1088,141 N.Y. 564
• Parties: DAMMERT et al. v. OSBORN et al.
• Court: New York Court of Appeals Court of Appeals

141 N.Y. 564

35 N.E. 1088

DAMMERT et al.

v.OSBORN et al.

Court of Appeals of New York.

Jan. 23, 1894.

On motion for reargument. Denied.

For former report, see 35 N. E. 407.

O'BRIEN, J.

The defendant the Sociedad de Beneficiencia de Lima moves for a reargument in the case. It did not appeal from the judgment of the general term to this court, and the decision below did not confer upon it any right or title to the fund which the will of Jose Sevilla has donated to the founding of a charitable institution in New York. On the contrary, the supreme court refused, distinctly, to hold that this defendant had acquired any title or interest in the fund under the will, upon which alone its claim is based. As it made no appeal from that judgment, it must be deemed to have acquiesced in the decision, in so far as it was adverse to its claim. The only standing that it had in this court at the argument was not as an appellant, but as a respondent, to sustain the judgment below, which held that the bequest in the will was void here, and that the fund should be remitted to Peru, the principal seat of administration. It has admitted in its answer that by the law of Peru, the domicile of the testator, the provisions of the will are valid; and, if so, it is somewhat difficult to see what it has to gain by remitting the fund to that country, when it is interested in such a question. Assuming, however, that it had the right to insist in this court that the judgment below, though adverse to all of its substantial claims, should have been upheld, we are brought to the grounds upon which it asks for a reargument of the appeal. The motion assumes that various facts appearing in the record, and certain authorities upon the briefs, have been overlooked. The only ground, apparently, for this assumption seems to be that they have not been specifically noticed or commented upon in the opinion. It would seem to be unnecessary to state-what every member of the bar must know-that to do that would impose upon the court an amount of useless labor quite unreasonable to expect, and would swell opinions, which should only express the reasons of the court for its conclusions as concisely as possible, into essays on each subject involved in the appeal. It does not follow that, because a fact or an authority deemed important by counsel has not been noticed or commented upon in the opinion, it has not been considered, and due weight given to it, in arriving at the decision. In many cases, facts incorporated in the record, and discussed at length by counsel, are considered by us wholly unimportant; and authorities from which long quotations are made, inapplicable. This motion will serve as a good illustration of this remark. The first ground mentioned is that we have overlooked the fact that the testator was a citizen of the United States and of this state. It was not overlooked, but we did not consider the fact as of the slightest importance, and do not now. Moreover, the learned counsel who makes the motion nowhere in his brief attempts to show how it is. It was conceded in the pleadings and on the argument that the testator was at the time of his death domiciled at Lima, in Peru. The will was made and proved there, and from the beginning to the end of the argument it was conceded to be, what it certainly was, a Peruvian will. It was utterly immaterial, therefore, whether the testator was a citizen of this country, or of Peru, or a subject of some other country. The domicile of the testator was the important fact, and there was no dispute about that, and is none now. Sometimes the...