In re Bernheimer

New York Supreme Court

In re Bernheimer

54 N.Y. Sup. Ct. 567, 15 N.Y. St. Rep. 40

DecidedMarch 15, 1888

StatusPublished

This text of 54 N.Y. Sup. Ct. 567 (In re Bernheimer) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Bernheimer, 54 N.Y. Sup. Ct. 567, 15 N.Y. St. Rep. 40 (N.Y. Super. Ct. 1888).

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Opinion

Yan Brunt, P. J.:

Upon tlie petition herein presented to tbe court asking an order vacating an assessment upon tbe petitioners’ lots for an outlet sewer in Manhattan street, etc., upon various grounds set out in tbe petition, a motion for such rebef was noticed for February 21, 1884.

[568]*568Upon an affidavit of one of the assistants to the counsel to the corporation, setting forth the fact of such notice of motion, and that on March 12, 1880, a motion had been made by the same petitioners to vacate the same assessment on the same property as that specified in the foregoing petitions, as well as on other property, and that an order had been entered vacating said assessment, that an appeal had been taken from said order, and such order had been reversed as to the property specified in said petition, and that subsequently a proceeding was instituted before the assessment commission, by the petitioners herein, to vacate this assessment as to the said property; that the question of the validity of the assessment upon the property in question was litigated before said commission and the relief denied; an order to show cause, returnable at the same time as the notice of motion founded upon said petition, why the petition herein should not be dismissed and the prayer of the petitioners denied, was granted. Upon the return of this order to show cause, the motion to dismiss was granted, and from the order thereupon entered, this appeal is taken.

The appellants claim that the court had no power to dispose of this proceeding in this summary way, but that the court should have taken all the proofs of the parties and then have, rendered judgment. It is to be observed .that from the order entered upon this proceeding it does not appear that any objection was taken to the form of the evidence submitted to the court to sustain the claim of the counsel to the corporation, nor is any denial of such evidence made, and we must therefore consider this appeal as, though upon the return day of the petitioners’ motion, certain undisputed facts were made to appear to the court, which were fatal to the peti tioners’ right to relief and, without going farther, the court gave judgment. This, it seems to us, the court had the power to do. It was not necessary that a long series of proof should be taken after it appeared that the petitioners could not possibly succeed because of insuperable legal obstacles.

The court had the power to dispose of this question first, and if it found upon the proofs submitted that the petitioners had no. right to relief, to render judgment accordingly. It is, however, further contended that the facts before the court did not show any defense to the petitioner’s application. The previous applications were to [569]*569vacate this identical assessment upon this identical property which were denied. This present application is for the same relief. It seems to us clear that in proceedings of this kind, application after application cannot be made for the same relief. The questions involved have once been tried upon their merits' and decided, and cannot be again .brought into dispute. The judgment in the first proceeding is the law of the case and cannot be set aside except by appeal.

Neither can a party escape the effects of a judgment in a prior proceeding upon the plea that different grounds are alleged as the foundation for relief in the new proceeding from those set forth in the old, because a party is bound in one action or proceeding to set forth all the grounds upon which he claims specific relief, otherwise great multiplicity in suits or proceedings would arise, a party bringing as many suits or proceedings to procure certain relief as there existed grounds upon which he thought himself entitled to such relief- Such a procedure has never been tolerated, the rule being that all grounds of relief or defense must be included in one action or proceeding unless it is made to appear that the new grounds were not or could not by reasonable diligence have been ascertained before. (Guest v. City of Brooklyn, 79 N. Y., 624.)

The order appealed from must be affirmed, with costs.

Bartlett and Macomber, JJ., concurred.

Order affirmed, with costs.

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Yan Brunt, P. J.:

Upon tlie petition herein presented to tbe court asking an order vacating an assessment upon tbe petitioners’ lots for an outlet sewer in Manhattan street, etc., upon various grounds set out in tbe petition, a motion for such rebef was noticed for February 21, 1884.

[568]*568Upon an affidavit of one of the assistants to the counsel to the corporation, setting forth the fact of such notice of motion, and that on March 12, 1880, a motion had been made by the same petitioners to vacate the same assessment on the same property as that specified in the foregoing petitions, as well as on other property, and that an order had been entered vacating said assessment, that an appeal had been taken from said order, and such order had been reversed as to the property specified in said petition, and that subsequently a proceeding was instituted before the assessment commission, by the petitioners herein, to vacate this assessment as to the said property; that the question of the validity of the assessment upon the property in question was litigated before said commission and the relief denied; an order to show cause, returnable at the same time as the notice of motion founded upon said petition, why the petition herein should not be dismissed and the prayer of the petitioners denied, was granted. Upon the return of this order to show cause, the motion to dismiss was granted, and from the order thereupon entered, this appeal is taken.

The appellants claim that the court had no power to dispose of this proceeding in this summary way, but that the court should have taken all the proofs of the parties and then have, rendered judgment. It is to be observed .that from the order entered upon this proceeding it does not appear that any objection was taken to the form of the evidence submitted to the court to sustain the claim of the counsel to the corporation, nor is any denial of such evidence made, and we must therefore consider this appeal as, though upon the return day of the petitioners’ motion, certain undisputed facts were made to appear to the court, which were fatal to the peti tioners’ right to relief and, without going farther, the court gave judgment. This, it seems to us, the court had the power to do. It was not necessary that a long series of proof should be taken after it appeared that the petitioners could not possibly succeed because of insuperable legal obstacles.

The court had the power to dispose of this question first, and if it found upon the proofs submitted that the petitioners had no. right to relief, to render judgment accordingly. It is, however, further contended that the facts before the court did not show any defense to the petitioner’s application. The previous applications were to [569]*569vacate this identical assessment upon this identical property which were denied. This present application is for the same relief. It seems to us clear that in proceedings of this kind, application after application cannot be made for the same relief. The questions involved have once been tried upon their merits' and decided, and cannot be again .brought into dispute. The judgment in the first proceeding is the law of the case and cannot be set aside except by appeal.

Neither can a party escape the effects of a judgment in a prior proceeding upon the plea that different grounds are alleged as the foundation for relief in the new proceeding from those set forth in the old, because a party is bound in one action or proceeding to set forth all the grounds upon which he claims specific relief, otherwise great multiplicity in suits or proceedings would arise, a party bringing as many suits or proceedings to procure certain relief as there existed grounds upon which he thought himself entitled to such relief- Such a procedure has never been tolerated, the rule being that all grounds of relief or defense must be included in one action or proceeding unless it is made to appear that the new grounds were not or could not by reasonable diligence have been ascertained before. (Guest v. City of Brooklyn, 79 N. Y., 624.)

The order appealed from must be affirmed, with costs.

Bartlett and Macomber, JJ., concurred.

Order affirmed, with costs.

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54 N.Y. Sup. Ct. 567, 15 N.Y. St. Rep. 40, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bernheimer-nysupct-1888.

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