Sleeman v. Hotchkiss — 41 N.Y. St. Rep. 173

Majority

p. 173

Nathaniel Sleeman, App’lt, v. Lewis Hotchkiss et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed November 13, 1891.)

Headnote

Trial—Calendar.

The complaint herein was dismissed so far as it prayed for equitable relief, and proceeded to trial at circuit, when plaintiff was allowed to withdraw a juror on condition of paying costs and making a motion for leave to amend. Said motion having been denied. Held, that he was entitled to have the cause restored to the calendar and retry it.

Appeal from order denying appellant’s application at circuit to restore cause to the calendar.

R. J. Moses, Jr., for app’lt; E. Louis Lowe, for resp’ts.

The complaint hei-e was never dismissed generally. It was dismissed at special term only so far as it prayed for equitable relief. Thereafter the action was tried at circuit, and the plaintiff was permitted to withdraw a juror on certain conditions; namely, the payment of costs and the making of a motion for leave to amend within twenty days. The costs were paid, and the motion to amend was duly made and denied. That left the action as it stood when the juror was withdrawn, and the plaintiff then had a right to go back to circuit and retry his case as best he could. Otherwise, the favor originally granted to the plaintiff at circuit would cost him his right to review; for if the juror had not been withdrawn the complaint would have been dismissed, and the plaintiff could then have appealed. He should be no worse off by reason of the refusal to permit him to •amend.

The order should be reversed, with, teu dollars costs and disbursements, and the cause set down for trial on the pleadings as they stand.

Van Brunt, P. J., Barrett and Andrews, JJ., concur.