Wilson v. Onderdonk , 3 How. Pr. 319 ( 1848 )

Barculo, Justice

The Defendant Onderdonk, who served a notice of appeal from the decision of Justice Edwards within ten days, now applies for leave to amend that notice, by converting it into a notice of an application for a rehearing, upon the ground that his counsel was mistaken in supposing that the new Code of Procedure applied to pending suits, and abolished reheatings.

If the decision made at the general term in Hew York, in the case of Schermerhorn v. The Mayor, &c., 3 Howard’s Pr. Bep., 254, contains a correct exposition of the statute regulating rehearing, then this application cannot be granted. Eor, according to the opinion of the court in that case, notice of rehearing must be given within ten days after notice of the original decree; and this is a statutory limitation the court cannot extend the time.

I have not, however, concurred in that view of the statute, as will be seen by reference to a contrary decision, made in June last, at the Dutchess general term, and the opinion then delivered. I suppose that the seventh section of the supplement to the code was designed to interfere with the existing practice on the subject of rehearings only so far as related,

1st. To restricting the right to be reheard at a general term, to cases involving the merits.

2d. To requiring security in all such cases.

I consider the latter clause of that section as referring to the rehearing of the cause itself, and not to the application for a rehearing-, and that the security spoken of is to be given within ten days after the order granting a rehearing, in substantial conformity to the 80th rule which required a deposit within ten days thereafter by the party obtaining a rehearing: the difference being that the statute has substituted security instead of a deposit.

With this view of the law, the Defendant could be permitted to apply for a rehearing within thirty days after service of the decree; and might therefore perhaps be permitted to serve notice of an application for a rehearing, as of the day when notice of this application was served—■ which was within the thirty days.

But, sitting here, I must bow to the decision of the general term in this district. Nor can the Defendant be relieved under the pretence of amending. The appeal, and a notice of rehearing, are different proceedings. To allow one to be substituted for the other would be an evasion of the statute.

The motion must be denied.