Toner v. Mayor of New York

1 Abb. N. Cas. 302

• Court: New York Supreme Court
• Decided: November 15, 1876
• Status: Published

Opinion

Lawrence, J.

Upon a dismissal of the complaint at the circuit, whether before or after the examination of witnesses, I do not understand that it is incumbent upon the justice presiding at the trial to file a decision in writing under section 267 of the Code. That provision relates to cases where the trial is before the court without a jury, which is not this case. The cases cited by the counsel for the plaintiff are all cases which were tried before referees or before a single justice, either at special term or circuit, without a jury. . In this case there was a jury impanneled, and findings '"were no more required than if the justice had granted a nonsuit or dismissal of the complaint at the close of the plaintiff’s evidence.

If in point of fact the plaintiff took the exception which he alleges was erroneously omitted by the stenographer, his remedy is not by moving to vacate the judgment, but by a motion to re-settle the case (See Hallgarten v. Eckert, 3 Sup’m Ct. [T. & C.] 102).

Motion denied.

¡No appeal was taken.