In re the City of New York , 15 A.D.2d 764 ( 1962 )

Motion for leave to reargue granted, and upon such reargument the court adheres to its original decision. Claimant’s motion for reargument is based in part on matter not included in the record and in part on matter in the record evidently overlooked by it upon the trial and on the appeal, and now brought to our attention for the first time, although such matter would have been responsive to issues raised by the city. A trial of the issue as to whether tanks 7 and 8 were in use is not indicated, because a determination of that issue favorable to claimant still could not affect the ultimate finding of excess capacity. We found that at least one fourth of the daily ice-producing capacity of claimant’s plant represented excess capacity. This finding is not weakened even if we accept claimant’s version of the entries on the log sheets in their application to tanks 7 and 8. Evidentiary support for our conclusion was of course fortified by the apparent disuse of two of the eight tanks, but even if we assume all eight were in use, ample substantiation remains. The asserted usefulness of the rated capacity must be weighed with reference to the actual production requirements; that the latter may be distributed among six tanks or among eight tanks is not the decisive factor. Claimant’s original affidavits are not addressed to this important point and, although the city’s affidavit emphasizes it, it continues ignored in claimant’s reply affidavit. Concur■—Botein, P. J., Breitel, Rabin, Valente and Steuer, JJ.