Toner v. Mayor of New York
New York Supreme Court
Motion to vacate judgment. This action was brought for salary of an assistant-alderman in 1875, February 17, 1876, and came to trial June 38, 1876. When the case was called at circuit, the plaintiff’s attorney partly opened the case before a jury already impanneled in a preceding cause.
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Motion to vacate judgment. This action was brought for salary of an assistant-alderman in 1875, February 17, 1876, and came to trial June 38, 1876. When the case was called at circuit, the plaintiff’s attorney partly opened the case before a jury already impanneled in a preceding cause. Before the case was fully stated by counsel for the plaintiff, defendant’s attorney moved to dismiss the complaint on the ground of res judicata, and referred to Demarest v. Wickham (9 Hun, 627), and the motion was granted. Plaintiff appealed to the general term, where the appeal was dismissed on the ground…
1Opinion of the CourtLawrence, J.
Upon a dismissal of the complaint at the circuit, whether before or after the examination of witnesses, I do not understand that it is incumbent upon the justice presiding at the trial to file a decision in writing under section 267 of the Code. That provision relates to cases where the trial is before the court without a jury, which is not this case. The cases cited by the counsel for the plaintiff are all cases which were tried before referees or before a single justice, either at special term or circuit, without a jury. . In this case there was a jury impanneled, and findings '"were no…
2Cited by1 opinion
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