Globe Lithographing Co. v. Bimberg

92 N.Y.S. 768

Opinion

PER CURIAM.

The issues in this case involved purely questions •of fact, upon which both parties gave conflicting testimony. .At the ■close of the entire case the court below reserved its decision, but •finally rendered a judgment in favor of the defendants, dismissing the plaintiff’s complaint with costs. This was error. Such a disposition ■of the case is to be taken as a nonsuit. The parties are entitled to a judgment upon the merits, and this court cannot be called upon to determine the issues presented, or the weight of evidence bearing thereon, until the same has been passed upon by the court below. Schlesinger v. Jud, 61 App. Div. 453, 70 N. Y. Supp. 616; Johnson v. Duncan, 98 App. Div. 322, 90 N. Y. Supp. 660.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.