Dunham v. Winans & Dunham

New York Court of Chancery

Dunham v. Winans & Dunham

2 Paige Ch. 24, 1830 N.Y. LEXIS 422, 1830 N.Y. Misc. LEXIS 37

CourtNew York Court of Chancery

DecidedJanuary 7, 1830

StatusPublished

Cited by3 cases

This text of 2 Paige Ch. 24 (Dunham v. Winans & Dunham) is published on Counsel Stack Legal Research, covering New York Court of Chancery primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dunham v. Winans & Dunham, 2 Paige Ch. 24, 1830 N.Y. LEXIS 422, 1830 N.Y. Misc. LEXIS 37 (N.Y. 1830).

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Opinion

The Chancellor.

This application is novel in its character and dangerous in principle. The objection to the witness on the ground of interest was distinctly raised and argued by counsel at the hearing, and the decree was not made until nearly two months afterwards. Five months after the final decree, the complainant for the first time offers to release the witness, and asks to set aside the decree and open the proofs in the cause, so that he may be re-examined. The object of this testimony is to support that of another witness for the complainant, and to contradict the positive answer of the defendant Winans and the evidence of a witness examined on his part. After a decree in the cause, it must be a very special case which will justify the court in opening the proofs, even to establish a new fact which a party has neglected to prove through inadvertance ; but a new trial or a re-hearing is never granted to enable a party to obtain cumulative testimony, or to contradict the witnesses examined by the adverse party. The conclusion at which I arrived upon the hearing was that even with the testimony of this witness the result of the case would not be altered. It is not necessary now to examine as to the correctness of that conclusion, as the incompetency of the witness is admitted by the counsel who asks for a re-hearing ; and I am satisfied that it would be dangerous to open the proofs after a final decree in such a case.

The petition for a re-hearing must therefore be dismissed with costs.

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The Chancellor.

This application is novel in its character and dangerous in principle. The objection to the witness on the ground of interest was distinctly raised and argued by counsel at the hearing, and the decree was not made until nearly two months afterwards. Five months after the final decree, the complainant for the first time offers to release the witness, and asks to set aside the decree and open the proofs in the cause, so that he may be re-examined. The object of this testimony is to support that of another witness for the complainant, and to contradict the positive answer of the defendant Winans and the evidence of a witness examined on his part. After a decree in the cause, it must be a very special case which will justify the court in opening the proofs, even to establish a new fact which a party has neglected to prove through inadvertance ; but a new trial or a re-hearing is never granted to enable a party to obtain cumulative testimony, or to contradict the witnesses examined by the adverse party. The conclusion at which I arrived upon the hearing was that even with the testimony of this witness the result of the case would not be altered. It is not necessary now to examine as to the correctness of that conclusion, as the incompetency of the witness is admitted by the counsel who asks for a re-hearing ; and I am satisfied that it would be dangerous to open the proofs after a final decree in such a case.

The petition for a re-hearing must therefore be dismissed with costs.

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Bluebook (online)

2 Paige Ch. 24, 1830 N.Y. LEXIS 422, 1830 N.Y. Misc. LEXIS 37, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunham-v-winans-dunham-nychanct-1830.

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