Thursby v. Mills

11 How. Pr. 116

• Court: New York Supreme Court
• Decided: October 15, 1853
• Docket: No. 3.
• Status: Published

Opinion

Edwards, Justice.

The ground upon which the plaintiffs ask for an injunction is, that John Thursby, in the suit brought against him by the defendant Mills, accidentally omitted to prove before the referees that certain debts, contracted in the partnership business between Thursby and Mills, were bad. It appears that the report of the referees was made in the year 1851; and that, in the written opinion delivered by them, they stated that they found “ that Thursby had exonerated Mills from all losses in the business, as between themselves; and that it was unnecessary for the referees to determine whether the debts due to the firm were by persons of pecuniary means or not.” At the time that this report was made, Thursby either knew or had the means of knowing whether any, and, if any, which of the debts were bad. He was at that time informed of the necessity of proving that fact, if he intended to do so.

Since the report was made, judgment has been entered, and an execution issued; and although numerous and multifarious motions have been made which have had the effect of preventing the defendant from obtaining satisfaction of his judgment, still no application has, until now, been made to the court for relief on the ground of any mistake or misapprehension; and no excuse is given for this great delay. I do not think that the plaintiff has made out such a case as entitles him to an injunction.

Motion denied, with $10 costs.