Mannion v. Broadway & Seventh-Avenue Railroad

13 N.Y.S. 759

Opinion

O’Brien, J.

Upon a trial at circuit with a jury there is no trial upon the merits unless the questions are submitted to the jury for their findings of fact, or a verdict directed by the court for either party. In this case there was no submission to the jury of any questions of fact or direction of a verdict by the court, but merely a nonsuit for failure of proof at the close of plaintiff’s case. The recital in the judgment of a dismissal upon the merits is therefore erroneous, and the judgment in that respect should be corrected, and the motion to correct the clerk’s minutes by inserting “upon the merits” should be denied.