Woodworth v. Van Buskerk

1 Johns. Ch. 432, 1815 N.Y. LEXIS 198, 1815 N.Y. Misc. LEXIS 3

• Court: New York Court of Chancery
• Decided: April 29, 1815
• Status: Published

Opinion

_ The Chancellor.

The plaintiff went to a hearing without objection, and was willing to rely upon the testimony of Overacker, the principal witness for the defendants. It is a rule at law, on the subject of new trials, that a party going voluntarily to trial,goes at his peril, and he cannot have anew trial merely to give him an opportunity of impeaching the testimony of a witness of whom he was apprized beforehand, and of the very purpose for which he was to be called. He must, at least, show that he had since discovered testimony of which he had no knowledge before the trial. (2 Johns. Cases, 319. 5 Johns. Rep. 249. 9 Johns. Rep. 78. 1 Wils. 98. 2 Salk. 653. 2 Binney, 582. n.) There is no reason why an award should be set' aside on the grounds stated, when a verdict cannot; and that this court would not relieve, in such case, against a verdict, was fully considered in Smith Mead v. Lowry.

* The reason of the rule applies equally in each case, and the same mischiefs would follow from relaxing it. Thepower ofawardingnew trials at law, is exercised upon liberal andequitable grounds, and this consideration renders the rule, drawn from the practice of the courts of law, the more applicable. There is no chancery case, within my knowledge, that approaches to this. Besides, the arbitration bonds would, probably, have run out before the witnesses from Cayuga could have been procured ; and the defendants were not bound to enlarge the time, and the arbitrators had not the power.

Injunction denied.

Ante, p.320.