Willet v. Fayerweather

1 Barb. 72

Opinion

Edmonds, J.

The language of the chancellor in Hoffman v. Livingston, (1 John. Ch. Rep. 211,) and of the vice chancellor in Ray v. Conner, (3 Edw. 478,) explicitly condemns this motion.

Footnotes

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(a) The “new matter” which will alone justify the renewal of a motion, without leave, must be something which has happened, or for the first time come to the knowledge of the party moving, since the decision of the former motion. Such is not this case. Every ground on which this application is founded existed at the time of the former motion, and was then as well known to the defendant as it is now. This motion cannot, therefore, be allowed to be made without disturbing well settled and salutary rules.

Besides, if this were to be regarded as an application for leave to renew the motion, there are two reasons, which according to the practice of the court, would forbid its being granted. One is, that an important witness, not necessary for the plaintiff on the plea, but very material to him in regard to the defence set up in the answer, has died since the plea was put in. The plaintiff therefore might be irreparably injured by granting this motion.

The other reason is, that this application has not been made until after the other defendant has in his answer set up the same defence which the plea asserts, and the testimony on both sides has closed on that issue. To allow this motion, then, would be to permit the defendant, after virtually trying one defence and failing on it, to withdraw that and set up one entirely different. I am not aware of any case in which that has been allowed; and the practice seems to me to be fraught with too much danger to be sanctioned by this court.

The motion must be denied.

See also Ray v. Conner, (3 Edw. 478;) Dollfus v. Frosch, (5 Hill, 493;) Powell v. Tuttle, (10 Paige, 523;) Mitchell v. Allen, (12 Wend. 290.)