On the affirmance of the judgment by the general term, the plaintiff had an option either to move a reargument, or go to the court of appeals. Doubtless, he would have taken the former step, had he supposed the court anywise remiss in the consideration of the case. He chose rather to appeal from the judgment, and so stood upon his allegations of error. Is it possible that a suitor may have recourse to both these alternative remedies; that is, first take the chance of reversing the judgment for error, and then, failing in that, come back to the court below for a re-argument? If so, then an affirmance by the court of last resort will never be a finality, and we apprehend that in all cases the litigation will be renewed by an application for reargument. The motion proceeds, we suspect, upon the suggestion by the court of appeals that the plaintiff, if entitled at all, should have had a larger verdict. And so we thought, but, upon the evidence, our conviction was that the verdict should have been for the defendants. Instead, however, of remanding the cause for a third trial, we suffered the nominal verdict to stand, because, in our judgment, it involves no injustice to the plaintiff, and because we were not inclined to encourage the experiment of successive trials until some jury might be found to decide against the manifest right of the case. It was not pretended either that the jury were guilty of any misconduct, or that the plaintiff might improve his case by further proof. Why allow the chance of a verdict which the court would be bound to set aside? Motion denied, with costs.
BISOHOFF, J., concurs.