Majority
p. 672Stewart vs. Hamilton. (Before Barbour, J. at special term, January —, 1865.)
Headnote
Although an admission, made by the plaintiff’s counsel, in his opening, which is fatal to his case, may entitle the defendant to a judgment dismissing the complaint, yet a motion for dismissal will not be granted merely on the ground that the counsel has not stated, in his opening, sufficient facts to constitute a cause of action.In this action the counsel for the plaintiff having opened his case in an address to the jury, the counsel for the defendant moved for a nonsuit.
Ira D. Warren, for the plaintiff.
John H. Anthon, for the defendant.
I think it is not good practice to nonsuit upon the plaintiff's opening address to the jury, merely for the reason that he has failed to state to them sufficient facts to constitute a cause of action, although I am aware that such a
p. 673
practice has obtained in some of our courts. In his opening, the plaintiff’s counsel may properly, and usually does, state such facts only as he desires to impress upon the minds of the jurors. To hold him, in his address, to the exactness and certainty of a pleading, would, in many cases, be to impose upon him a duty which it would be exceedingly inconvenient, if not impossible, for him to perform orally. Indeed, I see no reason why he may not state to the jury, or refrain from stating, just so much of the case as his judgment dictates.
I do not mean to say that a fatal admission made by the plaintiff’s counsel in his opening may not entitle the defendant thereupon to a judgment dismissing the complaint, without the formality of taking evidence which must necessarily be useless. This motion, however, is not based upon such an admission, but merely on the ground that the counsel has not stated in' his opening sufficient facts to constitute a cause of action. It must, therefore, be denied.