I am unable to concur with the presiding justice in the conelusion arrived at upon this appeal. The motion for a reargument was properly made at the regular special term for the hearing of non-enumerated motions. There was no other term for which it could properly be noticed. The fact that the learned justice who decided the original motion did not Hiappen to preside when the motion for a reargument was brought on did not justify either a denial or a dismissal of the application. I entirely agree that the application should not have been entertained by the learned justice who then did preside, (for the reasons well stated by the presiding justice,) but that was no reason why the applicant should be refused the hearing to which he was entitled. He was not applying to any particular justice, but to the court, and his application should not have been denied or dismissed because the justice who should properly have heard him did not happen to be sitting. The proper course would have been to refer the application to the justice who «decided the original motion sought to be reargued, or to defer the hearing until that justice should preside at the regular special term for the hearing of non-enumerated motions. The order appealed from should therefore be reversed, with costs.
Andrews, J., concurs.