Lusk v. Smith
New York Supreme Court
This was an appeal, by the defendants Smith and Ayer, from an order made by Justice Allen, at a special term, granting a new trial. The pleadings and evidence established the following facts. The old firm of J. H. Tomlinson & Co. (of which the defendants were survivors,) borrowed $800 of James W. Lusk, the plaintiff, in June, 1845, for which they gave him their note. In 1846 the note was renewed for $856, including the interest.
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This was an appeal, by the defendants Smith and Ayer, from an order made by Justice Allen, at a special term, granting a new trial. The pleadings and evidence established the following facts. The old firm of J. H. Tomlinson & Co. (of which the defendants were survivors,) borrowed $800 of James W. Lusk, the plaintiff, in June, 1845, for which they gave him their note. In 1846 the note was renewed for $856, including the interest. On the 7th Dec. 1846, the plaintiff lent the firm $405,31, for which the firm gave him their note. The firm, about the same time, collected for the plaintiff $41,50…
1Opinion of the Court
By the Court, Gridley, J.
I. The first question presented on this motion is, has the constitution forbidden the granting of a new trial on the merits, by a single justice 1 It was provided by the 4th section of article 5 of the constitution of 1821, that “ the supreme court shall consist of a chief justice and two justices,” but it was added, “ any of whom may hold the court.” Under this provision it was decided that one justice could hold a court either at a general or special term. The phraseology of the constitution of 1846 differs from that of 1821. The 6th section of article 6 declares…
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