Nutting v. Kings County Elevated Railroad — 38 N.Y.S. 654

Majority

p. 654

(3 App. Div. 423.)

NUTTING v. KINGS COUNTY EL. R. CO.

(Supreme Court, Appellate Division, Second Department.

April 28, 1896.)

Headnote

Opinion in Advance op Trial—Appeal.

The court, on the second trial of a cause, having permitted certain amendments to the complaint, plaintiff, after the impaneling of the jury on the third trial, moved that the trial proceed on the amended complaint and answer, and requested the court to pass on the question at that stage of the proceeding. The motion was denied, and plaintiff was allowed to withdraw a juror. Held, that no appeal would lie from the action of the court in denying said motion.

Appeal from circuit court, Kings county.

Action by Andrew J. Nutting against the Kings County Elevated Railroad Company. From an order denying a motion that the trial proceed on the previously amended complaint and answer, plaintiff appeals.

Dismissed.

Argued before BROWN, P. J., and PRATT, CULLEN, BARTLETT, and HATCH, JJ.

Edward M. Grout, for appellant.

Delos McCurdy, for respondent.

This action has been twice tried. On each trial, plaintiff has recovered a verdict, and had judgment entered in his favor. Both judgments have been reversed by the general term, and a new trial ordered. On the second trial the court permitted certain amendments to the plaintiff’s complaint. When the cause was brought on at circuit for a third trial, and after the impaneling of a jury therein, the order appealed from recites that the plaintiff moved “that this trial proceed upon such amended complaint and answer of the defendant, and not upon the original complaint and answer of the defendant, and requesting the court to pass upon the question at this stage of the proceedings.” It was ordered that the said motion be denied. The plaintiff was allowed to withdraw a juror, and the case went off for the term. We see no authority for this appeal. The juror having been withdrawn, there was simply a mistrial. The order appealed from neither granted any amendment to the pleadings, nor denied any application for amendment. The law directs how trials shall, proceed, and no order of the court thereon was either requisite or appropriate. The action complained of was in fact a mere ruling on the trial, or rather an expression of opinion of how the court would rule when the question actually arose, which could only occur during the progress of the trial. Intimations are sometimes given by the court as to its view on a question of law, which will determine the result of the trial, in advance of the occasion which calls for the ruling, for the purpose of saving ■time,- both of the court and counsel. In such case it is the duty of the party aggrieved to put his evidence or case in such position as will properly present the question involved, submit to an adverse result, and review the ruling either on appeal from the judgment, or by a motion for a new trial. There is no authority, how

p. 655

ever, for reviewing any ruling of the court upon the trial, save by exception and subsequent appeal. There was no more authority for entering an order on the ruling of the court made at the opening of the case than there would have been on a ruling made either in the exclusion of evidence, or in the charge to the jury on the same subject. The so-called ruling or order of the court was a mere expression of opinion, which in no wise can control any subsequent trial. As to the future, it is a mere nullity, but the plaintiff cannot raise this objection, as the order seems to have been entered at his request. The cases cited by the plaintiff are not in point. In People v. Carson, 78 Hun, 544 , 29 N. Y. Supp. 619 , there was no ruling on the trial, but the court refused to allow the cause to proceed to trial, and struck it from the calendar. This action of the court violated a substantial right of the plaintiff, for he must go to trial before there could be any judgment rendered in the action from which he could appeal. It was therefore justly the subject of review, either by appeal or by mandamus, and no question as to the propriety of the remedy appears to have been raised. In Schoonmaker v. Blass, 88 Hun, 179 , 34 N. Y. Supp. 424 , the order appealed from granted an amendment to the pleadings, and such amendment was not made as upon trial, for the cause was put over the term. Such an order was unquestionably the subject of direct review.

The appeal should be dismissed, but, as we regard the order appealed from as a nullity, there should be no costs of this appeal. All concur.