10 Abb. Pr. 150 | N.Y. Sup. Ct. | 1860
—All the causes of action set out in the complaint are defective, except the first.
It is there alleged that the plaintiff was unable to give in evidence a bill of sale upon the trial, which was in possession of the defendant’s counsel, and that upon the trial, the defendant testified that it was only a mortgage. That since the trial the bill of sale has been found, and that it is not a mortgage.
It is not alleged that upon the trial the plaintiff did not know its contents, or that he offered himself as a witness to that effect. The mere loss of the paper did not relieve him from the obligation to give all the evidence in his power.
In Banning a. Eddy (1 Johns. Ch., 49), the chancellor says: “ This court will not relieve against a judgment at law, on the ground of its being contrary to equity, unless the defendant below was ignorant of the fact in question pending the suit, or it could not have been received as a defence.”
The same principle is stated in Foster a. Wood (9 Johns. Ch., 87), with the additional exception, or unless he was prevented from availing himself of the defence by fraud or accident, or the act of the opposite party, unmingled with negligence or fraud on his part.
The plaintiff, before he is entitled to the relief sought for, should bring himself within these cases, either by showing his ignorance of the facts in question at the trial, or excusing the non-production of parol evidence on his part, or in some other way to relieve himself from the obligation, to avail himself of all the means in his power, to succeed upon the former trial.
He may so amend his complaint; but in its present form, I do not think him entitled to the relief he asks for. ■
Judgment for the defendant on demurrer, with leave to plaintiff to amend on payment of costs. /
