Elwell v. M'Queen
New York Supreme Court
Error from the superior court of the city of New-York, M’Queen sued Elwell in a justice’s court of the city of New-1' ork, and declared against him in assumpsit, for money paid.
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Error from the superior court of the city of New-York, M’Queen sued Elwell in a justice’s court of the city of New-1' ork, and declared against him in assumpsit, for money paid. The defendant pleaded non-assumpsit and a former suit, before the same justice, between the same parties, for the same cause of action in which the merits of the plaintiff’s demand had been fairly entered into and investigated, and finally submitted to the justice, who took time for consideration to give judgment, and that the justice did within four days enter judgment, or ought so to have done. . The former suit was…
1Opinion of the Court
*521 jStj the Court,
Sutherland, J.
The only question upon the merits is whether the former suit and judgment were a bar to this suit. In Monnell v. Weller, 2 Johns. R. 8, the plaintiff was nonsuited upon the trial by the justice, for a variance between his proof and the declaration, but no costs were awarded against him. Upon certiorari brought to reverse this judgment, the court held, that although the nonsuit was improperly granted, yet, as no costs were adjudged against the plaintiff and the court could not restore the party to the state he was in when the nonsuit took place, they would not…
2Cases cited1 opinion
- Brintnall v. FosterNew York Supreme Court · 1831
3Cited by18 opinions
- In re Anthony-streetNew York Supreme Court · 1839
- Gummer v. Trustees of OmroWisconsin Supreme Court · 1880
- Childs v. DavidsonIllinois Supreme Court · 1865
- Kaplan v. Friedman Construction Co.Appellate Division of the Supreme Court of the State of New York · 1911
- Lee & Brewster v. HardgraveMichigan Supreme Court · 1853
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