Reed v. Depo ( 1960 )

Judgment unanimously modified on the law to the extent of reversing dismissal of first cause of action and new trial ordered as to that cause of action, with costs to appellants to abide the event and as modified affirmed. Memorandum : This action was tried at a Trial Term of the Supreme Court held in Onondaga County without a jury. The complaint contains two causes of action seeking injunctive relief. At the close of the plaintiffs’ case the trial court granted defendants’ motion for a dismissal and nonsuit as to the first cause of action. It dismissed the second cause of action at the close of defendants’ proof. The nonsuit of the first cause of action requires us to view the facts relative to it in a light most favorable to the plaintiffs and give to them the benefit of every favorable inference reasonably to be drawn from the facts proved (De Wald v. Seidenberg, 297 N. Y. 335, 336, 337; Osipoff v. City of New York, 286 N. Y. 422, 425). Within this rule we believe it was error for the trial court to have dismissed the first cause of action since a prima facie case was made out. The trial court in our opinion properly dismissed the second cause of action. (Appeal from judgment of Onondaga Trial Term dismissing plaintiffs’ first cause of action at the close of plaintiffs’ case, and dismissing the second cause of action at the close of defendants’ case, in an action for a judgment declaring plaintiffs to be entitled to an unobstructed right of way.) Present — Bastow, J. P., Goldman, Halpern and Henry, JJ.