Legal Opinion

Bay v. Gage

New York Supreme Court

Decided May 6, 1862PublishedCited by 10 opinions

THIS is an appeal from an order made at a special term, denying a motion for a new trial under the revised statutes, in an action of ejectment. The cause was referred to a referee and decided upon the merits, and judgment entered against the plaintiffs upon the report of the referee. The only question presented by this appeal is whether a new trial in ejectment can be granted where a judgment has been rendered on the merits upon the report of a referee.

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THIS is an appeal from an order made at a special term, denying a motion for a new trial under the revised statutes, in an action of ejectment. The cause was referred to a referee and decided upon the merits, and judgment entered against the plaintiffs upon the report of the referee. The only question presented by this appeal is whether a new trial in ejectment can be granted where a judgment has been rendered on the merits upon the report of a referee. The plaintiffs claimed that they were entitled to have the judgment vacated and a new trial granted; and the defendant insisted, not only,…

1Opinion of the Court

By the Court,

Bocees, J.

Prior to the act of 1861, a party against whom a judgment had been rendered in ejectment, “ upon a verdict,” was entitled to a new trial under the statute as a matter of right, on payment of all costs and damages recovered thereby. (3 R. S. 596, 5th ed. §§ 36, 37.) But this right to a new trial under the statute was limited to those cases where the judgment was “ rendered upon a verdict.” It was so held in Christie v. Bloomingdale, (18 How. 12;) also in Lang v. Ropke, (1 Duer, 701.) These cases are cited with approval in Chautauque Co. Bank v. White, (23 N. Y. Rep.…

2Cases cited9 opinions

  1. Dash v. Van KleeckNew York Supreme Court · 1811
  2. Ely and Others v. . HoltonNew York Court of Appeals · 1857
  3. Burch v. . NewburyNew York Court of Appeals · 1852
  4. Wood v. OakleyNew York Court of Chancery · 1845
  5. Van Rensselaer v. SmithNew York Supreme Court · 1858

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3Cited by10 opinions

  1. Seton v. HoytOregon Supreme Court · 1899
  2. Bullock v. Town of DurhamNew York Supreme Court · 1892
  3. Dillon v. DillonSupreme Court of Georgia · 1878
  4. Kelsey v. KendallSupreme Court of Vermont · 1875
  5. Railroad Co-Operative Building & Loan Ass'n v. Boston Building Estates, Inc.New York Supreme Court · 1933

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