Peters v. Diossy
New York Court of Common Pleas
This action was brought in the Marine Court to recover damages for unlawfully detaining personal property. Without making reference to any summons or process in the cause, or mentioning the date of the appearance of the parties, or the day of the trial, the return, which was not dated, simply set forth the pleadings and testimony, and stated that no evidence was introduced by the defendant; “ that thereupon on the first of September last past,” the justice rendered judgment…
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This action was brought in the Marine Court to recover damages for unlawfully detaining personal property. Without making reference to any summons or process in the cause, or mentioning the date of the appearance of the parties, or the day of the trial, the return, which was not dated, simply set forth the pleadings and testimony, and stated that no evidence was introduced by the defendant; “ that thereupon on the first of September last past,” the justice rendered judgment for the defendant; and that a notice of appeal was served and the costs paid by the plaintiff, on the 20th of September,…
1Opinion of the CourtDaly, J.
The plaintiff, upon failing in his proof, has the right to elect to ;be .nonsuited, in a justice’s court, or the justice upon the trial has a right to nonsuit the plaintiff, if, in his judgment, he fails,.upon his own showing, to make out his case, either on the ground of the incompetency or the insufficiency of his evidence; and a judgment of the nonsuit in such a case is no bar to another action for -the same cause. (Bennel v. Hull, 10 Johns. 364; Clements v. Benjamin, 12 Johns. 299; Hess v. Beekman, 11 Johns. 457). ■ But whether the plaintiff elect to be nonsuited, or a nonsuit be granted…
2Cases cited4 opinions
- Elwell v. M'QueenNew York Supreme Court · 1833
- Hess v. BeekmanNew York Supreme Court · 1814
- Bennett v. HullNew York Supreme Court · 1813
- Clements v. BenjaminNew York Supreme Court · 1815