Neugrass v. Thorner

121 N.Y.S. 596

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 10, 1910
• Status: Published

Opinion

BIJUR, J.

This action was brought originally for the purchase price of clothing under a .contract between plaintiffs, and defendant. The complaint, however, with defendant’s consent, was amended so as to change the cause of action to one for work, labor, and material furnished.

It is unnecessary to analyze the voluminous testimony adduced on the trial, in view of the erroneous judgment ultimately rendered.

At the close of plaintiffs’ testimony, defendant’s counsel moved to dismiss, which motion was granted. Plaintiffs’ counsel inquired on what ground, and the reply of the court was, “Failure of proof.” Thereafter defendant’s counsel moved for the direction of a verdict in his favor. That motion was also granted, and such verdict directed; plaintiffs’ counsel excepting. Regardless of what view we may take of the propriety of submitting the evidence to the jury, the judgment as rendered was unwarranted. Where plaintiff fails to prove his cause of action, "the complaint may be dismissed, with costs, without prejudice to a new action. Section 248 of the Municipal Court Act (Laws 1902, c. 580); Kieffer v. Met. St Ry. Co., 31 Misc. Rep. 780, 65 N. Y. Supp. 228.

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