Pattison v. Bacon — 21 How. Pr. 478

Majority

p. 478

SUPREME COURT.

Elias J. Pattison agt. Jared G. Bacon.

Headnote

A motion cannot be renewed Where all the additional matters sought to be set up were well known to the party when the original motion was made. He should have stated all that was necessary at that time to secure Ms success.

New York Special Term, March, 1861.

The plaintiff recovered judgment against the defendant, a little more than two years ago, upon a promissory note, upon failure to answer. Recently the defendant moved before Justice Ingraham to have the judgment opened, and to be allowed to come in and defend. The ground alleged for the motion was that the note in suit was given by the defendant for the purchase price of a note sold by the plaintiff to the defendant, and that the defendant was defeated in recovery on the note bought by him, by evidence that the note had been paid; hence that there was no consideration for the note in suit.

The motion was opposed on the part of the plaintiff, both upon the merits and also on the ground that a motion to open a judgment taken by default was too late, unless made within one year. Justice Ingraham denied the motion.

The defendant now moved, upon additional affidavits, to be allowed to renew his motion.

p. 479

Stephen P. Nash, for the motion.

Benj. Vaughan Abbott, opposed.

I see no reason for a re-argument of this motion. The additional matters which the defendant wishes to set up on the renewed motion were all known to him when that original motion was made. He should have stated all that-was necessary at that time to secure his success. If he has neglected to do so, it is not consistent with the rules of practice in such case to allow him the opportunity of making up the facts necessary to avoid the effect of the former decision. It is no more within the rule of propriety to -allow a renewal of a motion for such a purpose, than it would be to set aside a verdict of a jury because a party did not put in evidence all of his defence which was known to him at the time. If the order, as made on the motion, was right, it ought not to be vacated for the reasons now submitted. If it was erroneous, the defendant should appeal to the general term and have it reversed. The motion is denied,