Majority
p. 251(20 Misc. Rep. 634.) YELLOW PINE CO. v. GUTWILLIG. (City Court of New York, General Term. June 14, 1897.) Argued before VAN WYOIC, C. J., and McCARTHY, J.
Headnote
Trial—Withdrawal op Juror.It is not error, when the plaintiff, before resting his case, applies to withdraw a juror, to grant such motion, and deny a motion by the defendant for a nonsuit.
Appeal from special term.
Action by the Yellow Pine Company against Alfred G-utwillig. From an order at trial term allowing plaintiff to withdraw a juror, and denying defendant’s motion to dismiss, and from an order of special term granting plaintiff’s motion for leave to amend the complaint, defendant appeals.
Affirmed.
C. Elliott Minor, for appellant.
Eugene Sondheim, for respondent.
The plaintiff had not rested when its request to withdraw a juror and defendant’s motion to nonsuit plaintiff were made. It was not error to deny the nonsuit, nor to permit plaintiff to withdraw a juror, with leave to apply at special term for leave to amend the complaint. It was proper for the special term to permit an amendment of the complaint upon payment of $30 (the trial fee) to defendant. The defendant’s motion, made at the opening of the trial, to dismiss the complaint because it did not state a cause of action, was properly denied, as the complaint did state facts sufficient to constitute a good cause of action. The orders are affirmed, with costs.
McCABTHY, J., concurs.