Koscielniak v. Smith

18 A.D.2d 961, 238 N.Y.S.2d 352, 1963 N.Y. App. Div. LEXIS 4342

Opinion

Order unanimously affirmed, without costs of these appeals to any party. Memorandum: In our opinion the trial court acted within its sound discretion in granting a mistrial. (Rules Civ. Prac., rule 166, subd. 2.) In the posture in which the appeal comes to us, there is serious doubt as to whether or not the decision is reviewable (cf. Schultze v. Huttlinger, 150 App. Div. 489). The subsequent formal motions made by defendants for a nonsuit and dismissal of the complaint undoubtedly should not have been entertained and denied by the trial court. Such a motion may be made at the close of plaintiff’s case (6 Carmody-Wait, New York Practice, pp. 696-697) but here the court during the trial granted plaintiff’s motion to reopen and thereafter granted a mistrial before plaintiff again rested. Thus, the motions of defendants for a nonsuit, whether formal or informal, were premature and should not have been entertained and passed upon. (Appeals from order of Oneida Trial Term denying motion of defendants (1) to vacate order granting plaintiff’s motion for the withdrawal of a juror and for a mistrial and (2) to vacate order denying motion of defendants for a nonsuit and dismissal of complaint.) Present — Williams, P. J., Bastow, Goldman, MeClusky and Henry, JJ.