Bidds Successors, Inc. v. Reisberg

283 A.D. 775, 128 N.Y.S.2d 405

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 16, 1954
• Status: Published

Opinions

Per Curiam.

Before the end of plaintiff’s case and before plaintiff had rested, the trial court dismissed the complaint “ on the merits ” under section 482 of the Civil Practice Act and also on the ground that plaintiff was not prepared to proceed.

Plaintiff’s attorney, however, had a witness on the stand and stated that he had an additional witness or a number of additional witnesses, and that he intended to adduce testimony of the alleged conspiracy. While such witnesses were not present in court, it was very close to the time of adjournment, and plaintiff’s counsel repeatedly asked the trial court for leave to bring the witnesses before the court and jury the following morning. Under all the facts and circumstances disclosed in connection with the application, the trial court should have permitted plaintiff the opportunity of adducing further proof on the following day.

In any event, whatever the trial court may have thought of the merits of plaintiff’s case, the court should not in the jury’s presence before plaintiff rested, have given expression to his conviction of the worthlessness of plaintiff’s case, at the time plaintiff was in part asking for an opportunity to supplement the proof adduced with additional proof.

The judgment in defendant’s favor dismissing the complaint on the merits should be reversed and a new trial ordered, with costs to abide the event.