Berlin v. Weir

108 N.Y.S. 1063

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 5, 1908
• Status: Published

Opinions

BISCHOFF, J.

When the' plaintiff rested, the proof, taken in thé favorable aspect, which was the measure of its sufficiency for the purpose, of a ruling upon motion for a nonsuit, made out a prima facie case of delivery to the defendant of the package in question; but-this same evidence, when weighed with the probabilities, for the purposes of a determination upon the merits, if no other proof was offered for either party, was not necessarily enough to lead to a recovery. The plaintiff’s testimony alone was produced, and was so far infirmed by the probabilities of the case as to have justified the trial court in declining to base a favorable decision upon it. When the defendant rested, then, without giving evidence, the record did not call for a nonsuit, nor was that result one which could be upheld; but a judgment for the defendant upon the merits was quite authorized. Nothing in the record negatives the theory that the judgment rendered was upon the merits. The opinion of the justice is not a part of the record, which may be used for the purpose of reversing an apparently correct judgment; and, indeed, the opinion which is annexed to the return, while referring to a “dismissal” for “failure of proof,” discloses that the justice did weigh the evidence, as it was his duty to do, when both sides rested. The cases referred to by counsel (Egyptian Co. v. Comisky, 40 Misc. Rep. 236, 81 N. Y. Supp. 673; Degnario v. Sire, 34 Misc. Rep. 163, 68 N. Y. Supp. 789) certainly do not hold that, where the defendant rests upon the plaintiff’s proofs, a judgment for the defendant must be without prejudice to a new action; and section 248 of the Municipal Court act (Laws 1902, 1561, c. 580) bears no such construction.

The judgment should be affirmed, with costs.

GILDERSLEEVE, P. J., concurs.