Kumin v. United Waste Manufacturing Co. , 138 N.Y.S. 82 ( 1912 )

Per Curiam:

On the trial the plaintiff asked leave to withdraw a juror, which motion was granted on payment of costs. On settlement of the order a provision was inserted that if plaintiff should neglect to pay the costs within twenty days “ then the defendant’s motion for a nonsuit herein is granted, subject to the plaintiff’s exception; and judgment may be entered accordingly.” The motion for a nonsuit had'been made and formally denied prior to the granting of the order. The plaintiff neglected to pay the costs and on his motion the defendant was compelled to enter the judgment of nonsuit.

The defendant insists that the whole matter grew out of an order granting a favor to the plaintiff and, therefore, the plaintiff is not in position to question the propriety of the nonsuit.

While in a sense this is true, the order as resettled gave the plaintiff the privilege of neglecting to pay the costs, in which event a judgment of nonsuit was directed, giving him an exception thereto.

The plaintiff by motion compelled the defendant to enter the judgment, but such motion on his part did not amount to a judgment by consent or one from which he cannot appeal. We cannot go behind the order and, therefore, must consider the propriety of the nonsuit.

The claim for which the action was brought had been assigned to various parties and finally to this plaintiff. Such assignment was acknowledged but there was no certificate as to the authenticity of the acknowledgment. Nevertheless the paper was received against the defendant’s objection and the court refused to strike it out on defendant’s motion. The principal ground urged for a nonsuit in the court below and the one argued upon this appeal appears to have been that plaintiff had not shown title to the cause of action. The answer to that is that the assignment to him, rightly or wrongly, had been received and was in evidence when the motion for a nonsuit was granted. It was, therefore, a part of plaintiff’s proofs whether the court properly or improperly overruled defendant’s objection to its receipt. Under such situation the court was not authorized to grant a nonsuit on the ground that the plaintiff had failed to prove title to the cause of action.

If all that was necessary to be done was to obtain a certificate that the notary taking the acknowledgment was a notary, the court should have granted the plaintiff’s' motion to permit him to supply that proof.

It follows that the judgment must be reversed and new trial granted, with costs to the appellant to abide the event;

All concurred; Kellogg, J., in result.

Judgment reversed and new trial granted, with costs to appellant to abide event.