McNeill v. Town of Andes

U.S. Circuit Court for the District of Northern New York

McNeill v. Town of Andes

40 F. 45, 1889 U.S. App. LEXIS 2427

CourtU.S. Circuit Court for the District of Northern New York

DecidedOctober 9, 1889

StatusPublished

Cited by3 cases

This text of 40 F. 45 (McNeill v. Town of Andes) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Northern New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McNeill v. Town of Andes, 40 F. 45, 1889 U.S. App. LEXIS 2427 (circtndny 1889).

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Opinion

Coxe, J.,

(after stating the facts as above.) I do not see how the court can properly interfere to relieve the defendant. The stipulation is very broad. Its terms are unmistakable. The agreement was that, if the bonds wore for any reason held to be void by the supreme court, the plaintiff’s suit should be dismissed. On the other hand, if the supreme court did not decide that the bonds were void, the plaintiff was to have judgment forthwith. To entitle the plaintiff to judgment, nothing was required but a decision of the supreme court which did not invalidate the bonds. The decision rendered, or a decision dismissing the writ of error for lack of jurisdiction, or for defects in,the record, was just as much within the stipulation as an affirmance on the merits. The court appreciates the dilemma of the defendant, and would gladly afford relief if it could be done with justice to the plaintiff; but the latter has acted in good faith, relying upon the terms of the agreement. The parties cannot be relegated to the position in which they were when the stipulation was entered into. The plaintiff has parted with valuable rights. At any of the four terms lost by means of the stay the plaintiff could have obtained a final judgment. Now, however, the recovery and interest will be sufficient to enable the defendant to cany the cause to the supreme court, with the consequent delay.

Other reasons are urged why the relief should be granted, which may be divided into two classes, — those relating to alleged matters of defense not presented by the record in the Slauson Case, and those based upon newly-discovered defenses. As to the former, being within the knowledge of the parties at the time, and not reserved, they wore clearly waived by the stipulation. The supreme court could not possibly have passed upon them. As to the latter, I have considered them as if presented upon a motion for a new trial, and see no reason to set aside the judgment. Had they been presented on the trial of the Slauson Case the result would have been the same. The motion is denied.

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Coxe, J.,

(after stating the facts as above.) I do not see how the court can properly interfere to relieve the defendant. The stipulation is very broad. Its terms are unmistakable. The agreement was that, if the bonds wore for any reason held to be void by the supreme court, the plaintiff’s suit should be dismissed. On the other hand, if the supreme court did not decide that the bonds were void, the plaintiff was to have judgment forthwith. To entitle the plaintiff to judgment, nothing was required but a decision of the supreme court which did not invalidate the bonds. The decision rendered, or a decision dismissing the writ of error for lack of jurisdiction, or for defects in,the record, was just as much within the stipulation as an affirmance on the merits. The court appreciates the dilemma of the defendant, and would gladly afford relief if it could be done with justice to the plaintiff; but the latter has acted in good faith, relying upon the terms of the agreement. The parties cannot be relegated to the position in which they were when the stipulation was entered into. The plaintiff has parted with valuable rights. At any of the four terms lost by means of the stay the plaintiff could have obtained a final judgment. Now, however, the recovery and interest will be sufficient to enable the defendant to cany the cause to the supreme court, with the consequent delay.

Other reasons are urged why the relief should be granted, which may be divided into two classes, — those relating to alleged matters of defense not presented by the record in the Slauson Case, and those based upon newly-discovered defenses. As to the former, being within the knowledge of the parties at the time, and not reserved, they wore clearly waived by the stipulation. The supreme court could not possibly have passed upon them. As to the latter, I have considered them as if presented upon a motion for a new trial, and see no reason to set aside the judgment. Had they been presented on the trial of the Slauson Case the result would have been the same. The motion is denied.

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Bluebook (online)

40 F. 45, 1889 U.S. App. LEXIS 2427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcneill-v-town-of-andes-circtndny-1889.

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