¶1The court has no discretion. The statute is imperative that a party, on application and payment of all the costs and damages recovered, shall have a second trial (2 R. S 309 § 37; 2 Paine & Duer’s Pr. 517; Gra. Pr. 676; Shaw v. McMaren, 2 Hill, 417). “May” and “shall or may,” and “ shall and may,” sometimes, are imperative, and sometimes discretionary (see Malcolm v. Rogers, 5 Cow. 193; Mayor of New York v. Furze, 3 Hill, 612; Rex. v. Com. Flockwood Inclosure, 2 Chit. R. 251; Hudd v. Ravenor 2 B. & B. 664; King v. Bailiffs of Eyre, 4 B. & Ald. 271; Smith on Stat. 724; Dwarr. on Stat. 712; 1 Pet. U. S. R. 64). But here it is “shall,” and confers a right upon the party. The Code has made no change in this part of the practice (5 Wend. 101). Even in suits commenced under it. For, although the action of “ ejectment” is not retained by that name, in actions for land, these provisions of the Revised Statutes apply. They are not inconsistent with the Code (§§ 455, 471; Cooke v. Passage, 4 How. Pr. R. 360). Motion granted.
5 How. Pr. 50
Rogers v. Wing
Decided August 15, 1850
New York Supreme Court · decided 1850-08-15
Application by the defendant for a new trial in ejectment, the judgment having been paid, pursuant to statute (2 R. S. 309). The action was commenced before the Code.
Cited by 2 later decisions — most recently May 1886
2 state decisions
Relies on Malcom v. Rogers · Jackson ex dem. Bush v. Phœnix Bank
Good law ✅— No negative treatment on recordhow we know
Decided 1850-08-15
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