Hoffman v. Livingston

1 Johns. Ch. 211, 1814 N.Y. LEXIS 216, 1814 N.Y. Misc. LEXIS 28

• Court: New York Court of Chancery
• Decided: September 19, 1814
• Status: Published

Opinion

The Chancellor.

There is weight in all the objections. The same interlocutory motion, on the same matter, -ought not to be repeated, without the existence-of some new ground. The former motion, on the same point, was heard, discussed, and decided; and there would be great vexation But it is said that the if the same motion can be repeated. . . affidavits present new matter. 1 hey are intended, however, only as additional evidence of .the matter urged in support of the former motion ; nor is it usual or proper to introduce affidavits (taken, necessarily, ex parte) to aid the answer, on such a motion. The plaintiff is not permitted to traverse and contradict the answer by affidavits; but the injunction is dissolved, of course, if the answer denies all the equity in the bill. If the answer is not sufficient, of itself, to support the motion, the injunction ought to be continued to the hearing.

When the court has jurisdiction of the case, and the answer is not sufficient to dissolve an injunction staying proceedings at law, there ought not to be a trial of any part of the matter ih controversy, but such as shall be "awarded for the information of this court. When it becomes necessary to ascertain What was the extent of the farm, as occupied by Hendrick Hoffman, in December, 1784, this court will take the proper measures for that purpose. The rights of the parties cannot he ascertained until the hearing, and, until then, it would be inconvenient, and might be dangerous, to permit any interference at law.

Motion denied, with costs.