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Mithell v. Allen

12 Wend. 290 Court N.Y. Sup. Ct. Decision date 1835-03-19 English

Delivered by Sutherland, J.

Contents

Majority

p. 290
Mithell vs. Allen.

Headnote

A special motion cannot be renewed without leave of the court, previously obtained.
March, 19.
The defendant moved to vacate a rule entered at a previous special term denying a motion made by him, alleging that the grounds upon which the former motion was denied were now satisfactorily explained. The plaintiff objected that the matter was res judicata, and could not again be heard The defendant relied upon the case of Standard v. Williams, 10 Wendell, 599, where it is said, that if the affidavit of the party opposing a motion be untrue, or if the facts relied upon by him can be explained, so as to show that they ought not to have influence in resisting the motion, the party may apply to the court, upon notice to vacate the rule denying his motion.

By the Court,

The motion cannot be heard. It is the settled practice that a motion cannot be renewed without leave of the court. The case of Standard v. Williams decides nothing to the contrary of such practice it is there said, the party may apply to the court, upon notice to vacate the rule denying his motion. So he may: but not without leave of the court previously obtained, which is all ways granted, if, in the circumstances of the opposition, there is any thing to excite suspicion of unfairness, or a belief that the party moving is taken by surprise. Indeed it is not unusual for the court, without application, to-annex such leave to. a denial of a motion.