Wurtzel v. Provident Loan Society

132 N.Y.S. 334

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 22, 1911
• Status: Published

Opinion

LEHMAN, J.

The plaintiff made out a complete prima facie case of conversion against the defendant. At the close of plaintiff’s case the defendant moved to dismiss the complaint, and the trial justice granted the motion, and gave judgment for the defendant and against the plaintiff, although the defendant had presented no evidence and had not rested.

The defendant urges that the trial justice was acting as judge and jury, and, having heard the story of the plaintiff’s witnesses, he refused to believe them, and therefore properly gave judgment for the .defendant. The error in this view is that at the close of the plaintiff’s case the trial justice had no such power. He was not then acting as judge and jury, but only as judge, to determine whether or not the plaintiff had made out a prima facie case. If the plaintiff had then failed to prove his cause of action, he could dismiss the complaint, but only without prejudice to a new action.

It follows that the judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.