Unger v. Belt Line Railway Corp.
Appellate Division of the Supreme Court of the State of New York
Appeal by the plaintiff, Caroline Unger, as administratrix, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 4th day of February, 1916, dismissing the complaint upon the direction of the court, and also from an order entered in said clerk’s office on the 9th day of December, 1915, granting defendant’s motion to set aside the verdict of the jury in plaintiff’s favor and to dismiss the complaint.
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Appeal by the plaintiff, Caroline Unger, as administratrix, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 4th day of February, 1916, dismissing the complaint upon the direction of the court, and also from an order entered in said clerk’s office on the 9th day of December, 1915, granting defendant’s motion to set aside the verdict of the jury in plaintiff’s favor and to dismiss the complaint. Defendant moved to dismiss the complaint at the close of plaintiff’s case and renewed the motion at the close of the…
1Opinion of the Court
Jenks, P. J.:
The court granted a motion to dismiss the plaintiff made at the close of the case, an order was made and a judgment was entered that dismisses the plaintiff on the merits. I am of opinion that the judgment cannot stand and that the order must be modified so as to provide a new trial.
The court did not grant the motion until after it had submitted the case to the jury and the jury had returned the general verdict. The judgment cannot stand for two reasons: First, the order does state that the dismissal is upon the merits; and, second, the court could not make an order that…
2Cases cited7 opinions
- Stackus v. New York Central & Hudson River RailroadNew York Court of Appeals · 1880
- Bail v. . N.Y., N.H. H.R.R. Co.New York Court of Appeals · 1911
- Schneider v. . Second Avenue Railroad CompanyNew York Court of Appeals · 1892
- Blyth v. J. M. Quinby & Co.Appellate Division of the Supreme Court of the State of New York · 1912
- Boyce v. New York City Railway Co.Appellate Division of the Supreme Court of the State of New York · 1908
2 more not listed; retrieve them via the Exa API.
3Cited by1 opinion
- Unger v. Belt Line Railway Corp.Appellate Division of the Supreme Court of the State of New York · 1921