
    TEAZ a. CHRYSTIE.
    
      New York Common Pleas, General Term;
    
    
      October, 1855.
    Ee-heAkiNG of Appeal. — Judgment of Marine Court.
    A rehearing of an appeal will not be granted, where no advantage could result from it.
    The proper form of judgment in the Marine Court, in Mechanics’ Lien cases.
    Motion for re-hearing of an appeal.
    The proceedings on the appeal in this case, are reported, 
      Ante. 109. The plaintiff now moved for a re-hearing of the appeal.
    
      Wm. R. Stafford, for plaintiff's.
    
      Wm. McDermott, for defendant Chrystie.
    
      A. R. Lawrence, Jr., for defendants, the Mayor, &c.
   WoodRuff, J.

It would seem from the language of the opinion given in the hearing of the appeal herein, that it was written under the belief that the judgment rendered in the court below, was a judgment that the complaint be dismissed.

It is upon this supposed misconception of the nature of the judgment that we are now asked to re-hear the appeal.

It is quite obvious, that if under the principles which governed the decision, the judgment for the defendant was correct, then no reason exists for a reversal, and no advantage could result from a re-hearing.

First. So far as the judgment in proceedings to foreclose mechanics’ liens is to be rendered like similar judgments in equity, a decree for the defendant is in substance and effect as it was under our old system in form, a decree that the bill be dismissed with costs.

Second. When a cause is finally submitted to the court below on proofs, submitted on both sides, the proper judgment is a final judgment for the plaintiff or for the defendant.

It was formerly denied that a justice had any power to order a non-suit after the cause had been finally submitted upon the proofs. (Elwell v. McGuen, 10 Wend. 519, and cases cited).

I think, therefore, there was no error in the court below, in ordering judgment for the defendants upon the whole case.

The affidavit submitted as the ground of the present motion, shows that the trial was conducted on the part of the plaintiff, under a misapprehension of what we deem the rule of law regarding the plaintiff’s right to recover, without showing that he was in some manner reinvested with the title to the claim, and the affidavit warrants the belief that on another trial the plaintiff might produce proofs which would entitle him to recover.

If we had a discretionary control over judgments in the Marine Court, with a power to order a new trial whenever we believed the ends of justice would be promoted by it, we might with propriety hear the parties on that question.

But the legislature have not conferred upon us any such discretion; unless the judgment was obtained by default we can only reverse for error, and though we may regret that the plaintiff did not produce further proof on the trial there, we do not perceive how it is in our power to relieve him.

I think we are compelled to deny the motion, but as the language of the opinion pronounced by the court has led the plaintiff to submit his motion, the motion should be denied without costs to either party.  