Stewart v. Hamilton

The Superior Court of New York City

Stewart v. Hamilton

18 Abb. Pr. 298, 28 How. Pr. 265, 3 Rob. 672

CourtThe Superior Court of New York City

DecidedJanuary 15, 1865

StatusPublished

This text of 18 Abb. Pr. 298 (Stewart v. Hamilton) is published on Counsel Stack Legal Research, covering The Superior Court of New York City primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Stewart v. Hamilton, 18 Abb. Pr. 298, 28 How. Pr. 265, 3 Rob. 672 (N.Y. Super. Ct. 1865).

Pincite

Opinion

Barbour, J.

I think it is not good practice to non-suit upon the plaintiff’s opening address to the jury, and for the reason alone, that he has failed to state to them sufficient facts to con[299]*299stitute a cause of action, although I am aware that such a practice has obtained in some of our courts.

In his opening, the plaintiff’s counsel may properly, and usually does, state such facts only, as he desires to impress upon the minds of the jurors. To hold him, in his address, to the exactness and certainty of a pleading, would, in many cases, be to impose upon him a duty which it would be exceedingly inconvenient, if not impossible for him to perform, orally. Indeed, I see no reason why he may not state to the jury, or refrain from stating, just so much of the case as his judgment dictates.

I do not mean to say that a fatal admission, made by the plaintiff’s counsel in his opening, may not entitle the defendant, thereupon, to a judgment dismissing the complaint, without the formality of taking evidence, which must, necessarily, be useless. This motion, however, is not based upon such an admission, but, merely, on the ground that the counsel has not stated, in his opening, sufficient facts to constitute a cause of action.

It must, therefore, be denied.

Free access — add to your briefcase to read the full text and ask questions with AI

Barbour, J.

I think it is not good practice to non-suit upon the plaintiff’s opening address to the jury, and for the reason alone, that he has failed to state to them sufficient facts to con[299]*299stitute a cause of action, although I am aware that such a practice has obtained in some of our courts.

In his opening, the plaintiff’s counsel may properly, and usually does, state such facts only, as he desires to impress upon the minds of the jurors. To hold him, in his address, to the exactness and certainty of a pleading, would, in many cases, be to impose upon him a duty which it would be exceedingly inconvenient, if not impossible for him to perform, orally. Indeed, I see no reason why he may not state to the jury, or refrain from stating, just so much of the case as his judgment dictates.

I do not mean to say that a fatal admission, made by the plaintiff’s counsel in his opening, may not entitle the defendant, thereupon, to a judgment dismissing the complaint, without the formality of taking evidence, which must, necessarily, be useless. This motion, however, is not based upon such an admission, but, merely, on the ground that the counsel has not stated, in his opening, sufficient facts to constitute a cause of action.

It must, therefore, be denied.

Cite This Page — Counsel Stack

Bluebook (online)

18 Abb. Pr. 298, 28 How. Pr. 265, 3 Rob. 672, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-hamilton-nysuperctnyc-1865.