Milner v. Milner

2 Edw. Ch. 114, 1833 N.Y. LEXIS 169, 1833 N.Y. Misc. LEXIS 34

• Court: New York Court of Chancery
• Decided: October 7, 1833
• Status: Published

Opinion

The Vice-Chancellor:

The question in my mind is, whether the complainant, upon her intending to rely upon the new facts, must not file an entirely new bill ? I consider it not a case for amendment or a supplemental bill. The latter is generally filed to continue the original suit or is, in its matter, directly connected with it and because of the original bill being somewhat defective. But here, there is new substantive cause of action upon which a decree can be had without connecting it with the original bill. The complainant is here wanting to go entirely upon new ground. In fact, to make a new case. If this is to be done, it must be by a dismissal of the present bill and the filing of a new one.

I must refuse this motion.

Mr: Dyckman asked for leave to dismiss the original bill without costs : the application being in the alternative ; “ or for such other order,” &c.

The Vice-Chancellor :—I cannot allow that, on the present motion; nor do I think it can be done, without costs, at any time.