McDougall v. Miln

2 Paige Ch. 325, 1831 N.Y. LEXIS 251, 1831 N.Y. Misc. LEXIS 41

Opinion

The Chancellor.

The decision of the vice chancellor in this case is beyond all doubt correct. This is not a bill of , discovery, but a bill for relief; as it contains a general prayer to that effect. The proper course therefore for the defendant is to obtain orders to produce witnesses and to close the proofs, and to bring the cause to a hearing in the usual manner. If it then turns out that the complainant is not entitled to any decree against the defendant, and that his bill was improperly filed as a bill for relief, he will of course be decreed to pay the whole costs of the litigation. Whether it is possible for the complainant to make out by evidence a case which will entitle him to any relief upon this bill is a question not necessary now to determine. (See 8 Price, 522.)

The order of the vice chancellor must be affirmed with costs; and the case must be remitted back to him that such further proceedings may be had in the cause as may be necessary.