Trustees of Hamilton College v. Roberts — 154 N.Y.S. 1147

Majority

p. 1147

TRUSTEES OF HAMILTON COLLEGE v. ROBERTS et al.

(Supreme Court, Appellate Division, Fourth Department.

December, 1914.)

Headnote

Appeal from Trial Term, Oneida County. Action by the Trustees of Hamilton College against Edward Roberts and others. From a decision dismissing the complaint, plaintiff appeals. Modified and affirmed.

We are of the opinion that the construction put upon the contract by the trial court is correct, and that the evidence fails to show, as was held by the trial court, what land is reasonably necessary to answer the requirements of the contract as so construed. It seems to have been the intention of the trial judge not to preclude the plaintiff from bringing another action, and therefore, to avoid any question in that regard, we think it better that

p. 1148

the dismissal of the complaint should be upon, the motion for the nonsuit made at the trial, upon which decision was reserved. The decision may be modified so as to show affirmatively that the complaint was not dismissed upon the merits.

FOOT®, J., not sitting.