an

8. Order requiring pleading to be made
definite. An order requiring
answer to be made more definite and
certain by separately stating each
defense or counterclaim so as to show
whether it was intended as a defense
or a counterclaim, is a discretionary
one, which does not affect any sub-
stantial right of the defendant, and
is not appealable. Garfield National
Bank v. Kirchway.
273

9. Irreconcilable grounds of decision.
Where the grounds assigned for the
decision are irreconcilable or ambigu-
ous, the appellant is entitled to the
benefit of those most favorable to
him. Mason Stable Co. v. Lewis. 359

10. Leave to appeal to Appellate Division.
The provision of section 1344 of he
Code allowing appeals from this term
to the Appellate Division, like appeals
to the Court of Appeals under sec-
tion 191, is permissive only, and the
practice thereunder is to be governed
by the same rules. Lynch v. Sauer.
362

11. Same. Leave to appeal will not be
granted where the subject-matter in-
volved is trifling in amount and the
delay would work a hardship on the
respondent, or where the principle
involved is not of sufficient import-
ance to justify the application.

Id.

12. Reargument. A reargument will
not be granted unless the moving
papers show that some question de-
cisive of the case and duly submitted
has been overlooked; that the decis-
ion is in conflict with an express
statute or a controlling decision which
has been overlooked or not called to
the court's attention through inad-
vertence of counsel, or that the ques-

tion involved has since been decided
adversely by the Appellate Division
or the Court of Appeals. Hand v.
Rogers.
364

13. Same. A reargument will not be
ordered because the case was decided

2. Waiver of counterclaim. The matters
so alleged were that the plaintiff,
while advising or claiming to act for
the defendant, was secretly aiding and
advising the adverse parties, naming
them. At the close of the testimony
in the case, the defendant asked the
court to submit to the jury the ques-
tion whether or not the plaintiff was
entitled to recover at all by reason of
his subsequent transactions with those
parties. The court stated it would
submit the case only upon the ques-
tion of the value of the services, and
not at all upon any question of counter-
claim. The defendant's counsel then
stated that he waived the counter-
claim, because since the action was
brought another action upon which
the counterclaim was based was de-
cided in favor of the defendant. The
record then stated that "defendant's
counsel excepts." Held, (1) that the
waiver of the counterclaim might be
understood as a withdrawal of the
whole subject of the allegations of
the answer, there being no request for
a submission of the matters pleaded
as a defense as distinguished from
counterclaim; (2) that the request was
for the submission to the jury of a
question of law and not of fact, i. e.,
whether the plaintiff is entitled to re-
cover upon a certain state of facts;
and the refusal to submit was not

3. Counterclaim for conversion of mon-
eys-Evidence admissible under general
denial in reply. Where the answer in
an action by an attorney for services
sets up a counterclaim for conversion
of moneys collected by such attorney,
the plaintiff may, under the general
denial in his reply, show the rendition
of services for defendant in other ac-
tions and proceedings not embraced in
the complaint, and that the moneys in
question were applied, with defend-
ant's assent, in payment for such ser-
vices. Wilder v. New York Bank Note
Co.

355

2. Former adjudication. Plaintiff, at
the solicitation of defendant N.,
united with said defendant as co-
surety in executing the bail bond of a
third person who had been indicted
for a felony. In order to indemnify
plaintiff for the liability so assumed,
said defendant executed and delivered
to plaintiff a bond and mortgage on
real estate. The person for whom
the bail was given failed to appear
for trial, and the recognizance was
declared forfeited and directed to be
prosecuted. An action was there-
upon commenced against the plaintiff
and the said defendant upon the
recognizance, terminating in a judg-
ment which has been collected in full
out of the property of the plaintiff.
After the commencement of said ac-
tion on the recognizance, but before
the entry of judgment thereon, an
action was brought by plaintiff
against said defendant for foreclosure
of said mortgage and a personal judg
ment for any deficiency on the bond.
Held, that a reversal of a judgment of
foreclosure and sale in the last-named
action upon the ground that no cause
of action accrued in plaintiff's favor
until he had actually paid the amount
for which he had become liable under
the recognizance, followed by an
affirmance of the order of reversal
and for a new trial by the Court of
Appeals, plaintiff having given the
usual stipulation for judgment abso-
lute, constituted no bar to a subse-