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Jackson ex dem. Horton v. Roe

9 Johns. 77 Court N.Y. Sup. Ct. English

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p. 77
Jackson, ex dem. Horton and others, against Roe.
ALBANY,
Jan. 1812.

Headnote

Where a plaintiff wab nonsuited at the trial, the court refused to set aside the nonsuit» and grant a new trial, or. the ground that the plaintiff was surprised by the defence set up and had come unprepared to meet it.
A MOTION was made, on the part of the plaintiff, to set aside the nonsuit granted at the trial of this cause, and for a new trial.
The affidavit of Horton was read in support of the motion, that one of the lessors, and four others, of whom the defendant was one, purchased a lot of land of T. Golden, which was surveyed and subdivided into five lots. A deed was given by Golden to the lessor for the whole lot, who conveyed to the others the sub
p. 78
divided lots. The defendant took possession of his lot, and moved his fence, so as to encroach on the lot of the lessor. At the trial, the defendant denied the title of Colden, and the plaintiff, not being prepared to prove it, was nonsuited. It was further stated, that the lessor not having any idea of any other question to be made, at the trial, than the right of the defendant to move the fence, was surprised by the defence which was set up.

It is a well settled rule, that a new trial will not be granted, because the party came to trial unprepared, and this rule applies with at least as much force to the plaintiff as to the defendant. In Cooke v. Berry, (1 Wils. 98.) the plaintiff did not come prepared, to meet the defendant’s plea, because he took it to be a sham plea, as he had a letter under the defendant’s hand acknowledging the debt, but that letter he was not prepared to prove, and the defendant had a verdict, and, on motion for a new trial, it was denied. That was a much harder case than this, for there plaintifflost his debt for ever, but here he was only nonsuited; and whether he was nonsuited, or had a verdict against him, he is equally at liberty to bring a new suit, and is only punished in costs, for his neglect or carelessness. The general rule is too well established to be questioned, and too useful to admit of innovation. (2 Salk. 653. 2 Johns. Cases, 319. 2 Binney, 583.)

Motion denied.