Consequa v. Fanning

3 Johns. Ch. 364 | New York Court of Chancery | 1818

The Chancellor.

The application for a rehearing in this case has been unreasonably delayed. The defendants acquiesced in the decree, by submitting to the reference which was directed by it, and by appearing before the Master, and making their defence, by way of discharge and payment-, upon the principles contained in the decretal order. After the accounts have been taken and stated, and the Master’s report made, the petition for a rehearing is now presented, and it goes to the grounds and substance of the decree, in respect to the mode of taking the accounts. The affidavit of the plaintiff’s solicitor has been read, but as far as it relates to the merits of the case before the Master, I should think it not admissible, and that if any information of that kind was wanting, it ought to have appeared upon the report or certificate of the Master. As far, however, as the affidavit relates to the acts of the defendants, in respect to their concurrence in taking the account, it may be proper; but even here it was unnecessary, for the Master’s report contains the fact of the appearance of the defendants, by their counsel, before him, and of their defence.

Considering the nature and importance of this case, I am induced to grant the petition; but then it must be upon condition that the plaintiff be indemnified for the expense he has been put to, in taking the account. The,decree of the 30th September, was so precise and particular, in prescribing the limits, and in settling the mode of taking the accounts, that the defendants are without excuse for their delay. There was a rule of the English Court of Chancery, in 11 Geo. I. (Beames’ Orders, p. 334. 338.) requiring a petition for a rehearing to be presented within a fortnight after the order pronounced; and though the court has, in the exercise of its liberal discretion on this subject, departed from the rule, (Newland’s Practice, p. 187.) yet the existence of such a rule contains a salutary admonition.

There is, also, a standing rule in the English Chancery, (Rule of 1700 and of 1794. Beanies' Orders, p. 316. 459.) that the party obtaining a rehearing, shall deposit with the Register 10L to be paid to the adverse party, if the decree be not essentially varied. This is a useful check upon the abuse of such applications; and I see no reason why a similar rule of practice ought not to prevail here. After a cause has been regularly brought to a hearing, and argued by counsel, and solemnly considered, a rehearing ought not to be a matter of course, and without costs, as it would tend to harass the party, and protract litigation.

I shall, accordingly, grant the motion for a rehearing, on condition that the defendants previously pay the costs of the reference, under the order of the 30th of September last, and also deposit with the Register 50 dollars, towards the expense of the rehearing, in case the decree should not be materially altered; and to be paid over as the court shall finally direct. I shajl follow the practice of requiring a deposit in like cases, hereafter.

Order accordingly. -