Rogers v. Wing — 5 How. Pr. 50

Majority

p. 50

SUPREME COURT.

Rogers agt. Wing.

Headnote

On application and on payment of all damages and costs, as a matter of right, a party is entitled to a new trial in an action of ejectment. (See Cooke vs. Passage, 4 Boto, Pr. JR. 360.)

Warren Special Term,

August 1850.

Application by the defendant for a new trial in ejectment, the judgment having been paid, pursuant to statute (2 R. S. 309). The action was commenced before the Code.

H. R. Wing, in person, for the Motion.

E. H. Rosekrans, for Plaintiff,

insisted that it was clear from the opinion of the court, given on a motion for a new trial, that the defendant had no defence; and that it was discretionary, with the court whether a new trial should be granted; “ shall” meaning “may,” in such cases (§37).

The court has no discretion. The statute is imperative that a party, on application and payment of all the costs and damages recovered, shall have a second trial (2 R. S 309 § 37; 2 Paine & Duer’s Pr. 517; Gra. Pr. 676; Shaw v. McMaren, 2 Hill, 417 ). “May” and “shall or may,” and “ shall and may,” sometimes, are imperative, and sometimes discretionary (see Malcolm v. Rogers, 5 Cow. 193 ; Mayor of New York v. Furze, 3 Hill, 612 ; Rex. v. Com. Flockwood Inclosure, 2 Chit. R. 251; Hudd v. Ravenor 2 B. & B. 664; King v. Bailiffs of Eyre, 4 B. & Ald. 271; Smith on Stat. 724; Dwarr. on Stat. 712; 1 Pet. U. S. R. 64). But here it is “shall,” and confers a right upon the party. The Code has made no change in this part of the practice ( 5 Wend. 101 ). Even in suits commenced under it. For, although the action of “ ejectment” is not retained by that name, in actions for land, these provisions of the Revised Statutes apply. They are not inconsistent with the Code (§§ 455, 471; Cooke v. Passage, 4 How. Pr. R. 360). Motion granted.