22 N.Y.S. 860 | N.Y. Sup. Ct. | 1893
In March, 1890, the plaintiff commenced an action in the supreme court, Genesee county, against the defendant to recover the damages which she had sustained by reason of the death of her son, occasioned by the alleged negligence of the defendant. Issue was joined in the action, and in ¡November, 1891, it was brought to trial before the Honorable Henry A. Childs and a jury, at the Genesee circuit, which trial resulted in a nonsuit. An order was thereupon made, giving the plaintiff 90 days to make a case and exceptions, and that the motion for a new trial be heard at the general term in the first instance, and that all proceedings be in the mean time stayed. On the 14th day of October, 1891, a case containing exceptions was made, settled, signed, and ordered to be filed. On the same day the order directing the motion to be heard in the first instance at the general term was vacated, so as to allow the motion for a new trial to be made at the special term. The plaintiff did not file a case and exceptions as required, but on the 18th day of October thereafter served a notice upon the defendant that the plaintiff had abandoned her case and exceptions, and that an order without notice might be entered to that effect. On the 28th day of October this action was commenced, in which the plaintiff seeks to recover damages for the death of her son, alleged to have resulted from the negligence of the defendant. Thereupon the defendant noticed two motions for hearing at the Erie special term,—one in the first action, to compel the plaintiff to file the case and exceptions as settled; and the other in this action, asking that all the proceedings on the part of the plaintiff be stayed until the costs and disbursements in the first action should be paid. Both motions were argued at the same time. The motion in the first action was granted, and the plaintiff was ordered to file the case and exceptions within five days; and the motion in the second action was denied, with $10 costs of motion. Thereupon the plaintiff appealed to the general term from the order made in the first action, and the court reversed the order of the special term, and denied the motion. The defendant then entered final judgment in the first action, and taxed its bill of costs, and then noticed this motion for .hearing, based upon all of the papers and proceedings in the action.
The general rule is that a motion once denied at a special term cannot be renewed and heard by another special term, unless by the terms of the order it appears that the motion was denied on some technical reason, not affecting the merits, or leave is granted to renew the motion. Jay v. De Groot, 2 Hun, 205; Seaman v. McReynolds, 52 N. Y. Super. Ct. 543; Dunn v. Meserole, 5 Daly, 434; Talcott v. Burnstine, 13 N. Y. St. Rep. 552; Klumpp v. Gard