Poen v. Scott — 54 N.Y. St. Rep. 243

Majority

p. 243

Tekla Poen, App’lt, v. George Scott, Resp’t.

(New York Common Pleas, General Term,

Filed August 9, 1893.)

Headnote

Dismissal of complaint—Former judgment against defendant’s wife.

A dismissal of the complaint in an action for services, on the ground that plaintiff was precluded from recovering by a judgment in her favor on the same claim against defendant’s wife, is erroneous where no record of such judgment was offered in evidence and there was no admission of the recovery of such judgment made.

Appeal from a. judgment for defendant rendered by the district court in the city of New York for the eleventh judicial district. Action to recover wages of a domestic servant.

Robert Goeller, for app’lt; George W. Galinger, for resp’t.

Upon conflicting evidence the jury returned a, verdict for plaintiff, yet acting under a motion made by defendant’s counsel at the beginning of the trial, and before any evidence whatever was offered, that the complaint be dismissed on the ground that plaintiff was precluded from recovery in this action by a judgment in her favor upon the same claim against defendant’s alleged wife, the justice below ignored the verdict and rendered judgment for defendant, from which an appeal was taken to this court. This action of the trial justice is sought to be justified by a stipulation upon the trial, which appears in the minutes as having been entered into by counsel for the respective parties, and which was to the effect that the verdict be taken subject to the decision of the justice of the motion to dismiss the complaint, which was reserved, and that if the verdict be for plaintiff and the motion be determined adversely to her, judgment should be rendered for defendant without prejudice to plaintiff’s right to appeal.

p. 244

It is unnecessary in the present instance to inquire into the authority for the method of procedure adopted in the court below, for though we assume it to have been proper, the dismissal of the complaint and the award of judgment for defendant proceeded without the slightest evidence to warrant such a course. No record of any prior judgment in favor of plaintiff appears in the return of the justice on this appeal. Neither does the return show that any such record was offered in evidence, or that upon the trial of this action any concession whatever of the recovery of such a judgment was made by plaintiff or in her behalf.

The judgment appealed from should be reversed and a new trial ordered, with the costs of this appeal to the appellant to abide the event.

Gtegerich, J., concurs.