Malcolm v. Thomas

Kapper, J.:

This appeal illustrates anew the danger of a dismissal of the complaint upon the opening of plaintiff’s counsel jn an action triable by jury. Unless it is obvious that under no circumstances and in no view of testimony that might be adduced can the plaintiff prevail, the practice of dismissing on the opening of counsel alone should not be encouraged. Plaintiff was defendants’ tenant for over three years, occupying one-half of the second floor of a three-story tenement house in which there were six families, the defendants themselves being in occupancy of one-half of the third or…