Steele v. Wells — 20 N.Y.S. 736

Majority

p. 736

Steele et al. v. Wells et al.

(Supreme Court, General Term, First Department.

November 18, 1892.)

Headnote

Practice in Civil Cases—Dismissal of Complaint.

A judgment dismissing a complaint on the merits at the opening of the case by •plaintiff’s counsel is erroneous, and on appeal by plaintiff will be modified so as to direct a simple dismissal of the complaint.

Appeal from special term, Sew York county.

Action by Adelbert H. Steele and others against Thomas H. Wells and others to enjoin them from carrying out a certain contract and delivering certain bonds. A judgment was rendered for defendants dismissing the complaint upon its merits. Plaintiffs appeal. Modified.

Argued before Van Brunt, P. J., and O’Brien and Lawrence, JJ.

Wm. M. Safford, for appellants. Frank Sullivan Smith, (C. Walter Artz, of counsel,) for respondents Dick and another. Simpson, Thacher & Barnum, (Thomas Thacher, of counsel,) for respondent committee.

The case of Brooks v. Dick, (Sup.) 17 N. Y. Supp. 259 , was controlling upon the justice at special term, but, as the dismissal was upon the opening of the plaintiffs’ counsel, it was erroneous to dismiss the complaint upon the merits. The judgment should be modified so as to direct a simple dismissal of the complaint, and, as thus modified, it is affirmed, without costs on this appeal.