Opinion
June 24, 1938.
Appeal from Supreme Court of New York County.
Henry B. Johnson of counsel [ Raymond J. Knoeppel with him on the brief], for the appellant.
David Asch of counsel [ Martin Conboy and Hobart L. Brinsmade with him on the brief; Conboy, Hewitt, O'Brien Boardman, attorneys], for the respondent.
Present — MARTIN, P.J., O'MALLEY, TOWNLEY, GLENNON and UNTERMYER, JJ.
Order unanimously reversed, with twenty dollars costs and disbursements, and motion granted. Settle order on notice.
The extracts from the stenographer's minutes indicate that plaintiff had not rested. Since the trial justice said at the time of the adjournment that he intended to communicate with counsel for the purpose of setting the case down for a further hearing he should have done so. No further proceedings were had and no notice was given to counsel and still the judgment as entered contains a recital which reads in part, "and the defendant * * * having moved at the close of plaintiff's case to dismiss the complaint." Furthermore, there was no waiver on the part of plaintiff to submit further evidence or, if so advised, to make appropriate motions with reference to the pleadings. Consequently, the motion to resettle the order for judgment dismissing the complaint on the merits and to amend the judgment should have been granted.
The order appealed from should be reversed, with twenty dollars costs and disbursements, and the motion granted.