| NY | Feb 24, 1891
The opinion of Eabl, J., is as follows:
“I agree with Judge O’Bbieu that the plaintiff should not, upon the evidence presented by him, have been nonsuited. But I think he was nonsuited, and that for that reason the judgment should be reversed.
“ The plaintiff, after producing evidence, rested, and the ■defendant then moved to dismiss the complaint on the ground that there was £ no employment proved at all, and nothing which can justify any such charge as has been made.’ The referee reserved his decision, and subsequently rendered a written opinion on the motion in which he concluded, after carefully examining the evidence, that a nonsuit was proper, .and that the defendant’s motion should, therefore, be granted.
“ The case was then reopened by consent, and the plaintiff gave some.further evidence and again rested. The defendant then renewed his motion to dismiss the complaint, and the refree granted the motion and the plaintiff excepted. The referee then made formal findings embodied in his report in which he stated that the defendant, at the close of plaintiff’s evidence, moved to dismiss the claim of the plaintiff on the ground that no employment of the plaintiff had been proved, and that nothing could justify the charge made, and' that he-granted the motion, and that plaintiff’s counsel excepted to his decision, and then he made formal findings of fact and law as he should have done, and proper exceptions were taken to - them by plaintiff’s counsel.
££ The court, at both the Special and General Terms, also treated the case as one in which the plaintiff had been properly nonsuited.
“ I think the court erred in holding, as matter of law, that npon the evidence adduced the plaintiff had utterly failed to establish a cause of action, and the case should go back and be
“ I concur, therefore, that the judgment should he reversed and a new trial granted, costs to abide the event.”
read for reversal and new trial.
Judgment reversed.