Ansen v. Burt — 63 N.Y. St. Rep. 251

Majority

p. 251

Thomas Ansen, App’lt, v. Charles A. Burt, Resp’t.

(New York City Court, General Term,

Filed November 20, 1894.)

Headnote

Trial—Dismissal of complaint.

It is error to dismiss the complaint before the plaintiff has presented all of his evidence.

Appeal from a judgment dismissing the complaint.

Foley & Wray, for app’lt; Carpenter é Mosher, for resp’t.

This is an appeal from a judgment dismissing the plaintiff's complaint. The plaintiff had been examined and cross examined, but the same was not concluded, when the trial justice said he would not allow this case to go to the jury, and therefore dismissed the complaint. The action was for work, labor, and services as captain of a certain barge, at $13 per week for seven weeks, and as watchman for eleven nights at the rate of $1 per night, and for other services particularly detailed. The evidence presented a question of fact, part of the amount being admitted by the defendant’s answer. The court erred in dismissing the complaint. It should have permitted the plaintiff to present all his evidence, and then submitted the question to the jury. The libel in the United States court against the steam tug Meta to recover for personal injuries was not a bar to this action. It was

p. 252

not between the same parties, nor for the same claim, and was in no way connected witli the claim in suit. Nor are the facts alleged in the libel inconsistent with the claim in suit. The only purpose for which it could be used in this case is on the question of credibility of the witness, and this should have gone to the jury.

Judgment is therefore reversed, and a new trial granted, with costs to the appellant, to abide the event.