Jackson ex dem. Palmer v. Coe

5 Wend. 101

• Court: New York Supreme Court
• Decided: October 7, 1830
• Status: Published

Opinion

Motion for a new trial in action of ejectment on offer to pay costs and damages. By the revised statutes, a judgment in ejectment rendered upon verdict is declared to be conclusive, as to the title established in such action, upon the party against whom it is rendered; the court, however, in which the judgment is rendered, is required to vacate the judgment and grant a new trial upon the application, within three years after judgment, of the party against whom the same is rendered, and upon the payment by him of all costs and damages recovered thereby; and after a second judgment, the court on subsequent application made within two years after such judgment, may vacate it and grant another new trial, if satisfied that justice will be thereby promoted and the rights of the parties more satisfactorily ascertained and established. 2 R. S. 309, § 36 and 37. The action in this case having been commenced previous to the revised statutes taking effect, and in the form heretofore used in the name of a nominal plaintiff, Mr. Justice Sutherland decided that the provisions of the statutes relative to new trials in actions of ejectment were inapplicable to suits commenced previous to those statutes going into operation, and denied the motion.