MOTION by the plaintiff, Harriet Nugent, an infant, to vacate an order granting a new trial.
Also, a motion for the reinstatement of the respondent, Benjamin Oppenheim.
Edward W. S. Johnston, for the motion.
Harford T. Marshall, opposed.
These two motions involve the same facts.
In the first motion the plaintiff asks for a vacation of an order of this court granting defendant's motion for a new trial.
In the second motion Benjamin Oppenheim asks that an order disbarring him be vacated and that he be restored as a member of the bar.
The history of the case is as follows:
On May 5, 1896, the plaintiff Nugent, then an infant about three and a half years of age, was run over by one of the
defendant's one-horse cars on Madison street. She was injured so that one of her legs had to be amputated and she brought an action against the railroad company to recover damages for her injuries, in which Benjamin Oppenheim was her attorney.
The cause came on for trial on June 4, 1897, before the late Justice JOSEPH F. BARNARD and resulted in a verdict for $5,000. On the trial no question was made as to the extent of plaintiff's injuries nor to the fact that she was run over by the car, the sole controversy being as to the driver's negligence.
The plaintiff's theory was that she had left the curb and started to cross the street when the car was yet some distance away, so that the driver, if he had been attentive, had ample time to have seen the child and avoided the accident, but that he was not looking ahead, but was looking over his shoulder to one side, at a white mother and her baby standing in the doorway of a Chinese laundry. An appeal was taken to this court and the judgment affirmed in May, 1897. (See 17 A.D. 582.) An appeal was taken to the Court of Appeals, but pending that appeal and on May 24, 1899, a motion was made, upon an order to show cause, for a vacation of the judgment and a new trial on the ground that the plaintiff's witnesses had been ...