Kieffer v. Metropolitan Street Railway Co. — 65 N.Y.S. 228

Majority

p. 228

KIEFFER v. METROPOLITAN ST. RY. CO.

(Supreme Court, Appellate Term.

June 13, 1900.)

Headnote

Courts—Procedure—Judgment on Dismissal in Municipal Court.

Under Consol. Act. § 1382, providing for dismissal, with costs, without prejudice to a new action, in certain cases in municipal courts, a municipal court, on granting a dismissal for failure to prove the cause of action, cannot properly direct a verdict for defendant.

p. 229

Appeal from municipal court, borough of Manhattan, Third district.

Action by Frank Kieffer against the Metropolitan Street-Railway Company. From a judgment for defendant, plaintiff appeals.

Reversed.

Argued before BEEKMAN, P. J., and GIEGERICH and O’GORMAN, JJ.

M. Strássman, for appellant.

Henry A. Robinson, for respondent

This action was brought to recover damages for injuries to person and property, resulting from defendant’s alleged negligence in causing defendant’s car to collide with plaintiff’s wagon. At the close of plaintiff’s case a motion was made to dismiss the complaint, whereupon the justice granted the motion, and in addition thereto directed a verdict for the defendant. This was a manifestly erroneous disposition of the case. We think the evidence required the submission of the case to the jury, but, even assuming that the justice was right in believing that the motion to dismiss should be granted, it was improper to direct a verdict for the defendant. It was also improper to render a judgment such as the record discloses. In the municipal court, where a plaintiff does not prove his cause of action, the judgment should simply provide that the action is dismissed, with costs, without prejudice to a new action. Section 1382, Consol. Act.

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event.