Peters v. Chamberlain — 13 N.Y.S. 94

Majority

p. 94

Peters et al. v. Chamberlain et al.

(Supreme Court, General Term, First Department.

January 16, 1891.)

Headnote

Appeal from special term, New York county.

Action by William R. Peters and George Parker against Winfield S. Chamberlain and Nelson J. Botsford. Upon atrial before a jury, at the close of the plaintiff’s case the court dismissed the complaint; the clerk entering up júdgment in the following form: “Adjudged that the defendant have judgment against the plaintiff upon the issues in this action, dismissing the complaint upon the merits. ” The complaint was not in fact dismissed upon the merits. Plaintiff appeals from an order denying a motion to vacate the judgment.

Argued before Van Brunt, P. J., and Brady and Daniels, JJ.

Reynolds & Harrison, (Robert L. Harrison, of counsel,) for appellants. . Brigham & BayUs, (Willard N. Baylis, of counsel,) for respondent Nelson. J. Botsford, and Thomas O’.Callaghan, Jr., for respondent W. S. Chamberlain.

The facts in this case are similar to those in the case of Freeman v. Electric Lighting Co., ante, 93, (decided herewith,) except that the motion was denied, instead of being granted; and for the reasons stated in that opinion the order appealed from should be reversed, with $10 costs and disbursements, as against the respondent Botsford, and the motion granted. All concur.