Kieffer v. Metropolitan Street Railway Co.

31 Misc. 780, 65 N.Y.S. 228

Opinion

Per Curiam.

This action was brought to recover damages for injuries to person and property, resulting from defendant’s alleged negligence in causing defendant’s car to collide with plaintiff’s wagon. At the close of plaintiff’s case a motion was made to dismiss the complaint, whereupon the justice granted the motion, and in addition thereto directed a verdict for the defendant. This was a manifestly erroneous disposition of the case. We think the evidence required the submission of the case to the jury, but even assuming that the justice was right in believing that the motion to dismiss should be granted, it was improper to direct a verdict for the defendant. It was also improper to render a judgment such as the record discloses. In the Municipal Court, where a plaintiff does not prove his cause of action, the judgment should simply provide that the action is dismissed, with costs, without prejudice to a new action. § 1382, Consol. Act.

Present: Beekmae, P. J., Giegebich and O’Gobmae, JJ.

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