Botts v. Cozine

2 Edw. Ch. 583, 1836 N.Y. LEXIS 253, 1836 N.Y. Misc. LEXIS 24

• Court: New York Court of Chancery
• Decided: April 4, 1836
• Status: Published

Opinion

The Vice-Chancellor:

A court of law can grant a new trial in ejectment, where a judgment has been rendered by default, provided such court is convinced that justice will be promoted and the rights of parties more satisfactorily ascertained and established, and this can be done at any time within five years after the docketting of the judgment: 2 R. S. 309, § 38. And in ordinary cases of ejectment, a court of law will allow of two new trials : lb. § 37. Thus, a legal tribunal has power to do complete justice in actions of ejectment. But the present motion is not made upon the merits. It goes upon a point of practice in relation to election of remedies; and to this it has been objected that this court will not put a party to his election where he is complainant in the one case and defendant in the other—that he shall not be compelled to stand upon his defence at law or upon his complaint in chancery—that he must be plaintiff at law and complainant in equity in order to let the rule of election apply. That this is the right doctrine seems perfectly clear; and the present motion must be refused, with costs.