Rothfuss v. H. J. Koehler Sporting Goods Co.

GERARD, J. At the close of plaintiff’s case, and before any evidence had been offered on behalf of defendant, and before the defendant rested, on motion of defendant’s counsel, the court directed the jury to find a verdict in favor of defendant. When the proof adduced by plaintiff is insufficient to make out a cause of action, and no proof is offered by defendant, it is error to direct a verdict for defendant, because a dismissal of the complaint merely puts the plaintiff out of court, and enables him to sue over, on payment of the costs of the first suit; but the direction of a verdict is a bar to plaintiff’s-right of action. Rosenkranz v. Saberski, 40 Misc. Rep. 650, 83 N. Y. Supp. 257; Rothenberg v. Rosenberg, 57 Misc. Rep. 653, 108 N. Y-Supp. 678. In this view of the record, it becomes unnecessary for us to consider the other questions raised on appeal. Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.