The Persiana

158 F. 912, 1907 U.S. Dist. LEXIS 42

• Court: District Court, S.D. New York
• Decided: November 20, 1907
• Status: Published

Opinion

HOUGH, District Judge.

It - has been the uniform practice of this court not to entertain motions to dismiss at the close of libelant’s case, unless the claimant or respondent also rests. If the party defendant considers that any testimony is necessary to overcome that offered by libelant, it should be produced, and the court not asked to dispose of the litigation before all the testimony is submitted.

Libelant’s motion - to reopen and introduce in evidence claimant’s depositions must be denied. He could have offered these depositions as part of his own case, but did not choose to do so. He was not surprised, and will therefore not be permitted to support his case by evidence at hand when the cause opened, but only sought to be used after both sides rested and argument developed infirmity in his deliberately chosen position.

The libel is dismissed; but as claimant did not offer his depositions in evidence he can tax neither costs nor disbursements in respect of said depositions.