30 Misc. 610 | N.Y. App. Term. | 1900
The action is to recover damages for the conversion of personal property. The pleadings are in writing. The defendants answered separately, but the answers are similar in all respects, each denying every allegation of the complaint.
At the trial after the plaintiff had rested and the testimony of the defendant, Samuel Filarsky, had been taken in behalf of the defendants, the plaintiff moved to discontinue the action, which application was refused upon the defendants’ objection and the plaintiff excepted. Under the authorities, such refusal constituted reversible error. Section 1382 of the Consolidation Act (Laws of 1882, chap. 410), which applies to the Municipal Court of the city of New York (see Langbein Munic. Ct. Pr. 346), provides, among other things, that judgment that the action be -dismissed, with costs, without prejudice to a new action, shall be rendered where the plaintiff voluntarily discontinues the action before
. It is urged, however, that the plaintiff waived the right to discontinue the action, by cross-examining one of the two' witnesses called subsequent to the refusal of the application therefor; and by the submission of the case upon the close of the testimony without renewing such motion. Great stress is laid upon that portion of the opinion in the last-cited case, which reads: “ In the case at bar, the plaintiff sought to avail himself of his statutory right and he subsequently did nothing from which it can be said that he waived the right claimed by him.” There an application to discontinue the action was made by the plaintiff near the close of the testimony and while the defendants’ attorney’s examination-in-chief was unfinished. Hpon the defendants’ objection such leave was refused, and the plaintiff noted an exception. The wit-mess then proceeded with his testimony, but he was not cross-examined, nor were any further proceedings taken by the plaintiff, except that he asked leave to introduce further testimony, which request was immediately withdrawn when granted, and the testimony being closed, judgment was rendered for the defendant. In the case at bar the plaintiff did not offer any additional proof after the refusal of such application, but, it is true, as claimed by the defendants, he did cross-examine one of the witnesses subsequently called by them. There was nothing, to my mind, in the conduct of the plaintiff, or his counsel, subsequent to the denial of the motion to discontinue the action, from which a waiver of the exception taken to such ruling might be fairly implied. Certainly the cross-examination of witnesses called by the other side
It follows that the judgment must be reversed. °
Beekman, P. J., and O’Gorman, J., concur.
Judgment reversed and new trial ordered, with costs to abide event.