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Molloy v. Metropolitan Street Railway Co.

127 A.D. 205 Court Second Department, Decision date 1908-06-05 English

Delivered by Gaynor, J. :

Contents

Majority

p. 205
Margaret Molloy, as Executrix, etc., of Daniel Molloy, Deceased, Appellant, v. Metropolitan Street Railway Company, Respondent.
Second Department,
June 5, 1908.

Headnote

Appeal —dismissal after withdrawal of juror — errors not available.
Where plaintiff's attorney on his own motion has been allowed to withdraw a juror and the complaint has been dismissed because of a failure to pay the costs imposed as a condition, the court will not entertain an appeal from the-judgment dismissing the complaint based on alleged errors in excluding evidence.
Appeal by the plaintiff,. Margaret Molloy, as executrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 26th day of October, 1906, upon the dismissal of the "complaint by direction of the court at the close of the plaintiff’s case upon a trial at the Kings County Trial Term, on default of the plaintiff to comply with the conditions on which he. was allowed to withdraw a juror.
William, Pinkney Hamilton, Jr., for the appellant.
Bayard H. Ames [Anthony J. Ernest and Henry A. Robinson with him on the brief], for the respondent.

This is a strange case. On meeting with difficulties in making his proofs on the trial, and being himself-of the opinion that he had not made out a case, the plaintiff’s attorney was allowed on his own

p. 206
motion to withdraw a juror. The court imposed the condition that the plaintiff pay the defendant’s taxable costs and disbursements within 10 days, in default of which the complaint should be dismissed. The conditions xyere not complied with and a judgment of dismissal was entered. The plaintiff appeals from that judgment and discusses several alleged errors of the trial Judge in the exclusion of evidence. The case and exceptions, consist of 11 pages, the brief for the appellant consists of 15 pages, and that for the defendant of 32 pages — an abuse with which we are growing painfully familiar. Uothing is said of the fact that the court did not dismiss the case, hut allowed the plaintiff to withdraw a juror, and that the dismissal is based solely on his default to comply with the conditions imposed. . i

The judgment should he affirmed.

Present—Woodward, Hooker, Gaynor, Rich and Miller, Jj.

Judgment unanimously affirmed, with ’costs.