Citation Numbers: 12 Abb. Pr. 247
Judges: Brady
Filed Date: 5/15/1861
Status: Precedential
Modified Date: 2/3/2022
—The defendant pleaded as a-separate defence to this action that the plaintiff had commenced an action for the same cause set forth in the complaint; that
The defendants had set up the judgment of reversal as a final judgment, and the plaintiff seems to have been misled by that circumstance. The defence was m legal effect the averment of another action pending, and such is the rule upon which the justice on the trial dismissed the complaint. It will be perceived, on examination of the return, that the justice held the judgment of reversal to be a bar to a new action; and inasmuch as such reversal left the original action still pending, and no final judgment had in law been entered, the decision was correct. We have held repeatedly that where a judgment was reversed on appeal, the Marine Court was clearly wrong in not ordering a new trial. (Howe a. Julien, 2 Hilt., 453; S. C., 9 Abbotts’ Pr., 193.) Such should have been the judgnient of that court in this case. It had no power to order otherwise (Astor a. L’Amoreux, 4 Seld., 107; Edmonston a. McLoud, 16 N. Y., 543; Griffin a. Marquadt, 17 Ib., 28), unless it appeared that the plaintiff could not possibly succeed in the action, which was not pretended. It being the duty of the Marine Court to order the new trial, the judgment of reversal must be construed so as to remit the parties to the legal position towards each other which they held when the trial commenced, and should be regarded by intendment as an order for a new trial. It could have no other effect. The court had
The judgment should be affirmed.