Kumin v. United Waste Manufacturing Co. — 153 A.D. 498

Majority

p. 498

Samuel Kumin, Appellant, v. United Waste Manufacturing Company, Respondent.

Third Department,

November 13, 1912.

Headnote

Appeal — nonsuit entered on motion of plaintiff pursuant to order — action by assignee —• proof of title of claim — erroneous nonsuit.

Where on the settlement of an order granting plaintiff leave to withdraw a juror on payment of costs a provision is inserted that, if plaintiff neglects to pay the costs within twenty days, then defendant’s previous motion for a nonsuit is granted subject to plaintiff’s exception, and judgment may be entered accordingly, a motion by the plaintiff compelling the defendant to enter the judgment does not amount to a . judgment by consent or one from which the plaintiff cannot appeal. Where in an action by an assignee of a claim the assign merit, is received in evidence subject to the defendant’s exception that there is no certificate as to the authenticity of the acknowledgment, the court is not authorized to grant a nonsuit on the ground that plaintiff has failed to prove title to the cause of action.

Appeal by the plaintiff, Samuel Kumin, from a judgment of the County Court of Rensselaer county in favor of the defendant, entered in the office of the clerk of said county on the 31st day of July, 1912, upon the dismissal of the complaint by direction of the, court at the close of plaintiff’s case. '

Owen D. Connolly, for the appellant.

H. D. Bailey, for the respondent.

On the trial the plaintiff asked leave to withdraw a juror, which motion was granted on payment of costs. On settlement of the order a provision was inserted that if plaintiff should neglect to pay the costs within twenty days “ then the defendant’s motion for a nonsuit herein is granted, subject to the plaintiff’s exception; and judgment may be entered accordingly.” The motion for a nonsuit had'been made and formally denied prior to the granting of the order. The plaintiff neglected to pay the costs and on his motion the defendant was compelled to enter the judgment of nonsuit.

The defendant insists that the whole matter grew out of an order granting a favor to the plaintiff and, therefore, the plaintiff is not in position to question the propriety of the nonsuit.

While in a sense this is true, the order as resettled gave the plaintiff the privilege of neglecting to pay the costs, in which event a judgment of nonsuit was directed, giving him an exception thereto.

The plaintiff by motion compelled the defendant to enter the judgment, but such motion on his part did not amount to a judgment by consent or one from which he cannot appeal. We cannot go behind the order and, therefore, must consider the propriety of the nonsuit.

The claim for which the action was brought had been assigned to various parties and finally to this plaintiff. Such assignment was acknowledged but there was no certificate as to the authenticity of the acknowledgment. Nevertheless the paper was received against the defendant’s objection and the court refused to strike it out on defendant’s motion. The principal ground urged for a nonsuit in the court below and the one argued upon this appeal appears to have been that plaintiff had not shown title to the cause of action. The answer to that is that the assignment to him, rightly or wrongly, had been received and was in evidence when the motion for a nonsuit was granted. It was, therefore, a part of plaintiff’s proofs whether the court properly or improperly overruled defendant’s objection to its receipt. Under such situation the court was not authorized to grant a nonsuit on

p. 500

the ground that the plaintiff had failed to prove title to the cause of action.

If all that was necessary to be done was to obtain a certificate that the notary taking the acknowledgment was a notary, the court should have granted the plaintiff’s' motion to permit him to supply that proof.

It follows that the judgment must be reversed and new trial granted, with costs to the appellant to abide the event;

All concurred; Kellogg, J., in result.

Judgment reversed and new trial granted, with costs to appellant to abide event.