21 Wend. 454 | N.Y. Sup. Ct. | 1839
By the Courts
Mr. Lawton has submitted a very handsome, not to say a convincing argument, in favor of the justice’s power to grant the plaintiff in error leave to plead on the terms which he offered. I am strongly inclined to think, with him, that notwithstanding the 47th section of 2 R. S. 165, 2d ed. and § 119 of the same statute, the justice might, on the cause shówn, have given the leave without violating either the spirit of that section or any decision of this court; in short, that he had the same power in this respect as a court of record: which is to let in a defendant to plead at any stage of the cause, on terms such as shall save all reasonable chance of preparation to the plaintiff, while it subserves the purposes of justice by promoting a trial upon the merits, without dispensing with the exercise of proper diligence on the side of the defendant. Nor do I collect from the return, that the justice himself entertained any doubt of his power. All he tells us is, that he heard the defendant’s affidavit, and overruled his motion; and this raises the question submitted to us on a writ of error. Now it appears to me, that by reversing the judgment, we should be obliged to deny one of the main positions for which the counsel for the plaintiff in error has contended: it is, that the justice’s power is equal to that of a court of record, which may certainly grant or deny motions of this character in their discretion. To interfere" with a justice’s practice, would be to deny his discretion. If he violate a duty allowed or enjoined by statute, as in withholding an adjournment, or refusing to let in a party to plead, before
It has often been held, that a bill of exceptions will not reach a decision which rests in discretion. In Young v. Black, 7 Crancb, 565, refusing to compel a party to join in a demurrer to evidence, was held not to form the subject of a bill of exceptions. I refer to this case particularly for
Judgment affirmed#