Webb v. Groom — 29 N.Y. Super. Ct. 532

Majority

p. 532

Charles Webb et al., plaintiffs, vs. Wallace P. Groom et al., defendants.

Headnote

1. Re-arguments of motions, upon the same facts, are only to be allowed where it appears that the justice, in disposing of the motion, has overlooked, mistaken or misapprehended some material fact; or has decided it upon some question of law not presented by counsel. They are not allowed merely for the purpose of introducing the consideration of facts not in existence at the time the motion was decided.

2. Thus where a motion to vacate an order of arrest and attachment was granted, upon affidavits disproving any fraudulent intent on the part of the party arrested, a re-argument of such motion will not be granted merely upon the ground that certain subsequent acts of the defendant tend to establish the alleged fraud,

(Before Monell, J., at Special Term,

November, 1866.)

Motion for leave to re-argue a motion.

Mr. Dykers, for motion.

'Mr. Stafford, opposed.

The defendants were arrested and held to bail, for an alleged fraudulent disposition or intended disposition of their property. An attachment for the same cause was also granted. A motion to vacate the order of arrest and attachment was granted upon affidavits disproving any fraudulent intent. A motion for a re-argument of that motion is now made, upon the allegation that certain acts of the defendants, since done, tend to establish the alleged fraud.

Re-arguments of motions are only allowed, where it appears that the justice deciding the motion has overlooked, mistaken or misapprehended some material fact; or has decided upon some question of law, not raised or argued by counsel. I am not aware that they have ever been allowed to let in facts not in existence at the time the motion was decided. In the analogous case of motions for new trials

p. 533

on account of newly discovered evidence, the evidence must have existed at the time of the trial, hut its existence was unknown to the party, and could not with reasonable diligence have been discovered.

In this case, the acts now sought to be made available were done long after the motions had been decided, and of course could not have had any influence whatever upon the decision ; and it would be opposed by the uniform practice of the court, as well as unsupported by any principle, to open a case already decided' to let in such new facts.

The only remedy under the circumstances, is to make a fresh application for the provisional remedies founded upon the new facts.

The motion must be denied, with $10 costs.