nonsuit error in New York

1939Co., 228 N. Y. 54 .) The evidence in the record before us differs materially from the evidence on the previous trial where we reversed a judgment for the plaintiff. ( 247 App. Div. 95 .) The case was for the jury and the granting of the nonsuit was error.

1939Co., 228 N. Y. 54 .) The evidence in the record before us differs materially from the evidence on the previous trial where we reversed a judgment for the plaintiff. ( 247 App. Div. 95 .) The case was for the jury and the granting of the nonsuit was error.

1928(Tompkins v. Interborough Rapid Transit Co., 88 Misc. 20 .) For this reason we think the granting of a nonsuit was error.

1920(Race v. Union Ferry Co., 138 N. Y. 644 ; Weill v. City of New York, 147 App. Div. 637, 638 .) I think upon the plaintiff’s evidence that there was no question of fact for the determination of the jury, and that plaintiff’s complaint should have been dismissed, and that the failure of the court to grant defendant’s motion for a nonsuit was error.

1915Co., 213 N. Y. 694 , and Junkermann v. Jankelson, 213 N. Y. 404 , decided at the same time.) The plaintiff argues that the motion to dismiss the complaint, if granted at the Trial Term, would have resulted in a nonsuit only; that a nonsuit would not bar another action; but that the judgment of the Appellate Division, because characterized in the statute as final (Code Civ.

1915Co., 213 N. Y. 694 , and Junkermann v. Jankelson, 213 N. Y. 404 , decided at the same time.) The plaintiff argues that the motion to dismiss the complaint, if granted at the Trial Term, would have resulted in a nonsuit only; that a nonsuit would not bar another action; but that the judgment of the Appellate Division, because characterized in the statute as final (Code Civ.

1914(Higgins v. Eagleton, 155 N. Y. 466 ; Waldron v. Fargo, 170 id. 130; Sundheimer v. City of New York, 176 id. 495; Koehler v. New York Steam Co., 183 id. 1.) We think the plaintiff was entitled to have the case submitted to the jury upon the issues both as to the negligence of the defendant and the negligence of plaintiff’s intestate, and that granting the nonsuit was error." The judgment should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.

1904Rehberg v. The Mayor, 91 N. Y. 137 , 43 Am.

1903Co., 167 N. Y. 345 .) If there was evidence in law which, if believed by the jury, would have sustained a verdict for the plaintiff, then the nonsuit was error.

1900We think the nonsuit was error.' In Birkett v. Knickerbocker Ice Co. ( 110 N. Y. 504 ) a child four and a half years old was permitted to go upon the sidewalk with her six-year-old brother, and in play ran into the street, where she was run over by an ice wagon.

1894Schwandner v. Birge, 33 Hun, 186 ; Clarke v. Holmes, 7 Hurl. & N. 944; Hill v. Railroad Co., 109 N. Y. 239 , 16 N. E. 61 .

1894Schwandner v. Birge, 33 Hun, 186 ; Clarke v. Holmes, 7 Hurl. & N. 944; Hill v. Railroad Co., 109 N. Y. 239 , 16 N. E. 61 .

1894Fredenburg v. Railroad Co., 114 N. Y. 582, 585 , 21 N. E. 1049 , and citations supra. The only negligence imputed to the plaintiff being the failure to notice the defect, the question was for the jury, and the nonsuit was error.

1894Fredenburg v. Railroad Co., 114 N. Y. 582, 585 , 21 N. E. 1049 , and citations supra. The only negligence imputed to the plaintiff being the failure to notice the defect, the question was for the jury, and the nonsuit was error.

1894We understand the reluctance with which a judge at the circuit, who has once submitted a case to the jury, interferes to set aside the verdict, when it is rendered in response to such submission, but that sometimes it may be his duty to do so cannot be doubted, and this even in a case where his denial of a motion for a nonsuit was not error; for, as was said by Allen, J., in Colt v. Railroad Co., 49 N. Y. 671 , the evidence may be sufficient in law to sustain a verdict, although so greatly against the apparent weight of evidence as to justify the granting of a new trial.

1823Rep. 334 ) and Foot v. Sabin, ( 19 John. 154 ) the refusal to grant the nonsuit was error, for which the judgment must be reversed, and a vemire de novo awarded, returnable in this Court.