Rogers v. Wing

New York Supreme Court

Rogers v. Wing

5 How. Pr. 50

CourtNew York Supreme Court

DecidedAugust 15, 1850

StatusPublished

Cited by3 cases

This text of 5 How. Pr. 50 (Rogers v. Wing) 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

Rogers v. Wing, 5 How. Pr. 50 (N.Y. Super. Ct. 1850).

Pincite

Opinion

Hand, Justice.

The court has no discretion. The statute is imperative that a party, on application and payment of all the costs and damages recovered, shall have a second trial (2 R. S 309 § 37; 2 Paine & Duer’s Pr. 517; Gra. Pr. 676; Shaw v. McMaren, 2 Hill, 417). “May” and “shall or may,” and “ shall and may,” sometimes, are imperative, and sometimes discretionary (see Malcolm v. Rogers, 5 Cow. 193; Mayor of New York v. Furze, 3 Hill, 612; Rex. v. Com. Flockwood Inclosure, 2 Chit. R. 251; Hudd v. Ravenor 2 B. & B. 664; King v. Bailiffs of Eyre, 4 B. & Ald. 271; Smith on Stat. 724; Dwarr. on Stat. 712; 1 Pet. U. S. R. 64). But here it is “shall,” and confers a right upon the party. The Code has made no change in this part of the practice (5 Wend. 101). Even in suits commenced under it. For, although the action of “ ejectment” is not retained by that name, in actions for land, these provisions of the Revised Statutes apply. They are not inconsistent with the Code (§§ 455, 471; Cooke v. Passage, 4 How. Pr. R. 360). Motion granted.

Free access — add to your briefcase to read the full text and ask questions with AI

Hand, Justice.

The court has no discretion. The statute is imperative that a party, on application and payment of all the costs and damages recovered, shall have a second trial (2 R. S 309 § 37; 2 Paine & Duer’s Pr. 517; Gra. Pr. 676; Shaw v. McMaren, 2 Hill, 417). “May” and “shall or may,” and “ shall and may,” sometimes, are imperative, and sometimes discretionary (see Malcolm v. Rogers, 5 Cow. 193; Mayor of New York v. Furze, 3 Hill, 612; Rex. v. Com. Flockwood Inclosure, 2 Chit. R. 251; Hudd v. Ravenor 2 B. & B. 664; King v. Bailiffs of Eyre, 4 B. & Ald. 271; Smith on Stat. 724; Dwarr. on Stat. 712; 1 Pet. U. S. R. 64). But here it is “shall,” and confers a right upon the party. The Code has made no change in this part of the practice (5 Wend. 101). Even in suits commenced under it. For, although the action of “ ejectment” is not retained by that name, in actions for land, these provisions of the Revised Statutes apply. They are not inconsistent with the Code (§§ 455, 471; Cooke v. Passage, 4 How. Pr. R. 360). Motion granted.

Cite This Page — Counsel Stack

Bluebook (online)

5 How. Pr. 50, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rogers-v-wing-nysupct-1850.

Opinion

Related

Cite This Page — Counsel Stack