O'Brien v. Crowley

88 A. 1061, 85 N.J.L. 383, 56 Vroom 383, 1913 N.J. LEXIS 300

• Court: Supreme Court of New Jersey
• Decided: November 17, 1913
• Status: Published

Opinion

Per Curiam.

O’Brien, the plaintiff below, seeks by this appeal to reverse a judgment of nonsuit entered in the trial court. The postea sent up with the record shows that after the evidence had been given to the jury they went from the bar of the court to consider of their verdict; that after having considered thereof and agreed among themselves they returned to the bar to declare that verdict; upon- which the said plaintiff being solemnly called came not nor did she further prosecute her suit against the defendant. The one hundred and sixtieth section of 1he Practice act of 1903 declares that “It shall not be necessary to- call the plaintiff when the jury returns to the bar to deliver their verdict; the plaintiff shall have no right to submit to a nonsuit after the jury have gone from the bar to consider of their verdict.” In the case of Rollins v. Atlantic City Railroad Co., 41 Vroom, 664, this court declared that since the enactment of that statutory provision a judgment of nonsuit, rendered because the plaintiff did not appear when the jury returned into court to deliver their verdict, was illegal. Following the rule there declared the judgment brought up by this appeal must be reversed.

For affirmance — Parker, J. 1.

For reversal — The Chibe Justice, G-arrison, Swayze, Trenchard, Kaliscti, Yredenburgh, Congdon, White, Terhune, Heppenheimer, JJ. 10.