Reading in one of the antebellum orations (an address at Catawba College in 1854) I came across this statement: "Revolutions in society and government succeed each other as rapidly as the shifting scenes of the kaleidoscope." So that naturally set me to wonder--when was the first state appellate case to use a reference to a kaleidoscope?
Well, Warwick v. City of New York, 28 Barb. 210, (N.Y.Sup.Gen.Term, 1858), of course! The first line of the opinion gives some sense of the judge's frustration:
The complaint in this action appears to be a sort of fishing complaint. The plaintiff spreads a broad net. If he cannot get any thing for his own individual benefit, he then goes for the benefit of all the tax-payers of the city of New York." And now the payoff: "But can the plaintiff, in the same complaint, thus first present his own individual wrongs for judicial relief, and then the wrongs of the public, although relating to the same subject-matter; especially when, if the plaintiff is right in his view of his own rights and wrongs, the public have no rights, and have suffered no wrong whatever? I think not. I think the Code does not authorize this kaleidoscope sort of pleading, alternating for the judgment of the court, presenting different phases of the same act or acts, or of different acts relating to the same subject-matter, and presenting different wrongs, as these acts affect different parties in the same complaint, for judicial redress.
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