p. 302TONER v. THE MAYOR, &C. OF NEW YORK.N. Y. Supreme Court, First Department; Chambers,Headnote
Decision and Findings.—Stenogbapheb’s Omission oe Exception-Upon the dismissal of complaint in a jury cause at the circuit, though upon a point of law, and without examination of witnesses, no written decision and findings are necessary.
The remedy for a stenographer’s omission to note an exception is not by vacating the judgment, but by moving to re-settle the case.
Motion to vacate judgment.
This action was brought for salary of an assistant-alderman in 1875, February 17, 1876, and came to trial June 38, 1876. When the case was called at circuit, the plaintiff’s attorney partly opened the case before a jury already impanneled in a preceding cause. Before the case was fully stated by counsel for the plaintiff, defendant’s attorney moved to dismiss the complaint on the ground of res judicata, and referred to Demarest v. Wickham ( 9 Hun, 627 ), and the motion was granted.
Plaintiff appealed to the general term, where the appeal was dismissed on the ground that there was no exception on the record.
W.- S. Wolf, for plaintiff, then moved at special term to set aside the judgment on the ground that the judge should have filed his decision, or findings should have been entered according to section 367 of the Code.
p. 303It was also urged that the plaintiff excepted at the time, to the ruling of dismissal, and the stenographer failed to note it.
W. O. Whitney, opposed.
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.