Greenfield v. Cary
70 N.J.L. 613
N.J.
1904
Check Treatment

The opinion of the court was delivered by

Garretson, J.

The plaintiff sued to recover for breach of a contract, entered into October 18th, 1902, to serve as a picture frame joiner for one year, from October 27th, 1902, at $18 a week, and that he was discharged December 13th, 1902, being paid in full to that time.

At the close of the plaintiff’s case the defendants moved for a nonsuit upon the ground that the contract proved was not to be performed within a year from the making thereof, and, not being in writing, could not be sued upon.

This motion was denied by the judge. It should have been granted, as the case was clearly within that of McElroy v. Ludlum, 5 Stew. Eq. 828.

The motion for nonsuit having been denied, the defendants offered evidence that there was no agreement for a year’s em-. ployment, but only an employment by the week, so long as the plaintiff’s work was satisfactory; that he was incompetent and his work unsatisfactory, and therefore he was discharged. The defendants then moved the court to direct a verdict for the defendants, on the ground that the defendants had a right to discharge the plaintiff for incompetency, and that the testimony of the defence showed the plaintiff to be incompetent, and that there was no testimony contradicting or disproving that fact.

The record then states that counsel for the plaintiff thereupon asked to be permitted to submit to a nonsuit or to withdraw a juror. This the court refused to allow him to do and directed a verdict for the defendants, and the jury rendered a verdict for the defendants.

In Bauman v. Whiteley, 28 Vroom 487, this court held that a plaintiff has a right to suffer a nonsuit, on Ms own motion, at any time before the jury have retired to consider of their verdict. In that case it was said that this was the indis*615putable common law practice and so remains, except as modified by what is now section 160 of the Practice act of 1903 (Pamph. L., p. 537), which provides that a plaintiff shall have no right to submit to a nonsuit after the jury have gone from the bar to consider of their verdict. It is provided by section 68 of the District Court act of 1898 (Pamph. L., p. 556) that the practice of the Circuit Courts, in so far as applicable, shall apply to District Courts, excepting, however, in cases where there may be some express provision of law providing otherwise.

The right of the plaintiff to submit to a nonsuit at any time before the jury have retired to consider of their verdict, being a part of the common law practice of the Circuit Courts,is applicable to the District Courts.

The action of the judge in refusing the plaintiff’s application to submit to a nonsuit and directing a verdict for the defendants, cannot be sustained.

The judgment below is reversed and judgment of nonsuit may be entered.