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Neugrass v. Thorner

121 N.Y.S. 596 Court N.Y. App. Term Decision date 1910-03-10 English

Delivered by BIJUR, J.

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p. 596
NEUGRASS et al. v. THORNER.
(Supreme Court, Appellate Term.
March 10, 1910.)

Headnote

Courts (§ 189[1] )—Procedure—Judgment on Dismissal.
Under Municipal Court Act (Laws 1902, c. 580) § 248, providing for dismissal, with costs, without prejudice to a new action, where plaintiff fails to prove his cause of action, the court, on granting a dismissal on this ground, cannot also direct a verdict for defendant.
[Ed. Note.—For other cases, see Courts, Dec. Dig. § 189.[1] ]
Appeal from Municipal Court, Borough of Manhattan, Seyenth District.
Action by Frederick Neugrass and another against Jacob Thorner. From a judgment for defendant, plaintiffs appeal.
Reversed, and new trial ordered.
Argued before SEABURY, LEHMAN, and BIJUR, JJ.
Samuel J. Siegel, for appellants.
Bernard Gordon, for respondent.

This action was brought originally for the purchase price of clothing under a .contract between plaintiffs, and defendant. The complaint, however, with defendant’s consent, was amended so as to change the cause of action to one for work, labor, and material furnished.

It is unnecessary to analyze the voluminous testimony adduced on the trial, in view of the erroneous judgment ultimately rendered.

At the close of plaintiffs’ testimony, defendant’s counsel moved to dismiss, which motion was granted. Plaintiffs’ counsel inquired on what ground, and the reply of the court was, “Failure of proof.” Thereafter defendant’s counsel moved for the direction of a verdict in his favor. That motion was also granted, and such verdict directed; plaintiffs’ counsel excepting. Regardless of what view we may take of the propriety of submitting the evidence to the jury, the judgment as rendered was unwarranted. Where plaintiff fails to prove his cause of action, "the complaint may be dismissed, with costs, without prejudice to a new action. Section 248 of the Municipal Court Act (Laws

p. 597
1902, c. 580); Kieffer v. Met. St Ry. Co., 31 Misc. Rep. 780 , 65 N. Y. Supp. 228 .

Judgment reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.