Globe Lithographing Co. v. Bimberg — 92 N.Y.S. 768

Majority

p. 768

GLOBE LITHOGRAPHING CO. v. BIMBERG et al.

(Supreme Court, Appellate Term.

March 21, 1905.)

Headnote

Municipal Court—Submission of Cause—Judgment—Nature and Form.

Where the issues in a cause involving purely questions of fact were submitted to the court on conflicting evidence, a judgment rendered in favor of defendants, dismissing plaintiff’s complaint with costs, amounted to a mere nonsuit, and was therefore erroneous, the parties being entitled to a judgment on the merits.

Appeal from Municipal Court, Borough of Manhattan, Third District.

Action by the Globe Lithographing Company against Meyer R. Bimberg and others. From a Municipal Court judgment in favor of •defendants, plaintiff appeals. Reversed.

Argued before SCOTT, O’GORMAN, and BLANCHARD, JJ.

Atwater & Cruikshank (Douglas McKee, of counsel), for appellant.

William E. Hills, for respondents.

The issues in this case involved purely questions •of fact, upon which both parties gave conflicting testimony. .At the ■close of the entire case the court below reserved its decision, but •finally rendered a judgment in favor of the defendants, dismissing the plaintiff’s complaint with costs. This was error. Such a disposition ■of the case is to be taken as a nonsuit. The parties are entitled to a judgment upon the merits, and this court cannot be called upon to determine the issues presented, or the weight of evidence bearing thereon, until the same has been passed upon by the court below. Schlesinger v. Jud, 61 App. Div. 453 , 70 N. Y. Supp. 616 ; Johnson v. Duncan, 98 App. Div. 322 , 90 N. Y. Supp. 660 .

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

Cases cited

Johnson v. Duncan 98 App. Div. 322 N.Y. App. Div. 1904-11-23 p. 768