Kokancoal Co. v. Kasten

248 A.D. 730

Opinion

Upon an appeal from a judgment dismissing the complaint and from so much of the order on which the judgment was.entered as vacates the order of arrest and the warrant of attachment, judgment reversed on the law and the facts and a new trial granted, costs to abide the event; order, in so far as an appeal is taken therefrom, reversed. In our opinion, the trial justice was without power, under the circumstances shown by the record, to dismiss the complaint. The most the court was authorized to do was to set aside the verdict and grant a new trial. No reservation of the comet’s decision upon defendant’s motion to dismiss the complaint made at the close of plaintiff’s case and at the end of the case was made. Both motions were denied at the time made without thought of reservation. Lazansky, P. J., Young, Hagarty, Davis and Johnston, JJ., concur.