Southard v. Price

| New York Court of Chancery | Feb 15, 1860

Harrington, Chancellor.

The complainant is entitled to a preliminary decision of this motion ; for, though the importance of the new testimony sought to be introduced depends, in one aspect of the case, on a decision of the main question ; namely, the complainant’s equity to have the mistake corrected after it is shewn, his application for a further opportunity to shew its existence must be disposed of before I can proceed to a final decree. He may avoid that decree by dismissing his bill without prejudice, and impose, while he incurs, the expense of an entirely new case. And, if he is entitled to correct the alleged mistake, I could not proceed to a final decree without the further evidence; for it is admitted now that the profits of the partnership for 1856, cannot :be ascertained without an account of stock at the end of that year.

I do not wish to decide this case prematurely, nor by installments. I do not wish to hurry a decision when either party has not offered all the evidence in his power belonging to the case. It is not yet an old case, and no one will suffer by the delay necessary to take the testimony proposed, while both parties might be subjected to further and more expensive litigation by a decision excluding this testimony. I, therefore, grant the complainant’s motion.

At the same time, I expressly forbear any expression of opinion with regard to the merits of the case, and shall be entirely at liberty to dismiss the bill finally, after .proof of a mistake in the estimate of profits, if, either by the agreement of the parties or on general principles of equity, such mistake is not, under the circumstances, open to correction.

Appeal prayed, but not taken.

The case was afterward compromised.