Dobkin v. Dittmers

The opinion of the court was delivered by Gumkeke, Chiee Justice. At the close of the trial of this cause, at the Hudson Circuit, counsel for the defendant moved for the direction of a verdict in favor of his client, and the court after hearing argument for and against the motion, instructed the jury to render a verdict for the defendant. Thereupon the attorney for the plaintiff announced his intention to submit to a voluntary nonsuit and moved [236] that the plaintiff be called. On this state of facts the Circuit Court has certified to us for our opinion the following question : Can the court (under the facts stated) legally deny the motion for a nonsuit, or is the plaintiff entitled to have the nonsuit allowed as a matter of right ? The common law right of a plaintiff to submit to a voluntary nonsuit at any time before the actual rendition of the verdict has been contracted by the one hundred and sixtieth section of our Practice act (Pamph. L. 1903, p. 580), which provides that “the plaintiff shall have no right to submit to a nonsuit after the jury have gone from the bar to consider their verdict.” On the facts submitted in the present case the situation is the same, in contemplation of law, as if the jury, after receiving the charge of the court, had conferred together without leaving the box and announced to the court that they had agreed upon their verdict. The jury have “gone from the bar,” within the meaning of that phrase in the statute, when they have actually entered upon the consideration of their verdict, whether such action takes place within the precincts of the court room or in some other place pirovided for their use. Under the practice prevailing at common law the plaintiff was enabled to take advantage of knowledge acquired by him as to Hie result of the deliberation of the jury by permitting them to render their verdict in case it was in his favor and preventing them from doing so in case it was adverse to him. Undoubtedly one of the purposes of the legislature in the curtailing of this power was to prevent a plaintiff from depriving a defendant of the benefit of a verdict which had been found in his favor. To hold that he may still do so, unless the members actually walk out of the presence of the court before agreeing upon their verdict, is to emasculate the statute. The present case differs radically from Bauman v. Whiteley, 28 Vroom 487, and Greenfield v. Cary, 41 Id. 613, which are cited in support of plaintiff’s contention that his application should prevail. In each of those cases the application of the plaintiff for leave to submit to a voluntary nonsuit came immediately after a motion by the defendant for the direction [237] of a verdict in his favor and before the latter motion had been determined by the court. The cases had not yet been given to the jury, and the application of the plaintiff was therefore clearly within the statutory limit. In the present ease, however, the matters in controversy had been submitted to the jury; they had been instructed by the court as to what their action must be under the facts proved; in theory of law they had agreed upon their verdict and had returned to the bar to render it. The Circuit Court is advised that the application of the plaintiff for leave to submit to a. voluntary nonsuit came too late and should be denied.