Dodge v. Strong

2 Johns. Ch. 228 | New York Court of Chancery | 1816

The Chancellor.

This is a motion to dissolve the injunction, staying execution at law, upon the coming in of the answer.

[ * 231 ]

The object of the bill was to obtain a new trial at law. The defence of the present plaintiffs, if any they have, was legal and available at law, and if this Court could grant relief, it would be by requiring the present defendant to submit to a new trial. But it appears to me, after a very careful consideration of the case, as disclosed by the bill and answer, that I cannot retain the injunction consistently *with the established doctrines of this Court. The plaintiffs, by their own negligence, or that of their attorney, suffered an inquest to be taken against them, by default, at the last April sittings, in Neiv-Yorlc. They then applied to the Supreme Court for relief, and relief was granted upon certain conditions, and those conditions were- not fulfilled. Here was a second default, and this Court, cannot now- interfere. The answer of the defendant completely denies, not only every suggestion of equity contained in the bill, but every circumstance set up as an excuse for not performing the conditions upon which the rule, setting aside the inquest, was granted. It was the duty of the plaintiff's,, within the time limited by the rule, to have deposited the money in Court, and given notice of it, and to have paid or tendered the costs. This they neglected to do, and the fact charged, that a copy of the taxed bill was previously, by agreement, to have been furnished to the attorney for the complainants, is denied. They should, at all events, have tendered a sum sufficient for the taxable costs, and left the opposite party to have taken out the true sum at his peril.

It is stated, in Wyatt’s P. R. 145. that where a party is to pay costs for his default, he must procure them to be taxed, if he would set himself rectus in curia.

[ * 232 ]

After so palpable a neglect of the cause, as occurred at the April sittings, and after so strict and precise a condition as that on which the subsequent relief was made to depend, it is surprising that the plaintiffs should have been so little on their guard; and it is impossible to expect aid in this Court, unless the failure to comply with the condition arose from the act of the opposite party, or some unavoidable necessity. There is no excuse for it set up on one side, but what is completely denied on the other; and in addition to this, we have the decision of the recorder, and also of a judge of the Supreme Court, each passing an *opinion upon the validity of the excuse, and each rejecting it.

This Court has frequently declared, that relief cannot be had here for the purpose of a new trial at law, when the party has lost his opportunity at law, by his own negligence. I need only refer to the cases of Lansing v. Eddy, (1 Johns. Ch. Rep. 49.) Simpson v. Hart, (Id. 91.) Smith v. Lowery, (Id. 320.) and Barker v. Elkins, (Id. 465.) as containing not only all the English authorities which I have met with on the subject, but a full exposition of the principles on which the interference of this Court is, in such cases, denied. I am not at liberty to depart from a rule so fully established; and, however I may regret the misfortune of the plaintiffs, the motion to dissolve the injunction must be granted.

Injunction dissolved.