Deders v. Wood , 153 N.Y.S. 938 ( 1915 )

PER CURIAM.

The stenographer’s minutes, contained in the record' upon the appéal herein, show that as a witness named Ungar, who had been sworn on behalf of the defendant, was being examined m chief, the court below interrupted the examination, asked several questions, and the record then shows this:

“Body execution asked for. Judgment rendered for the plaintiff for $49, with body execution against the defendant. Exception taken by defendant.”

It does not appear that defendant had rested his case, and his taking an exception to the action of the court would plainly indicate that he had not, and this is one ground of error urged upon this appeal. Under such circumstances the return should be remitted to the lower court, and the trial justice required to return whether or not, at the time judgment- was so directed, the defendant had finished his testimony and rested his case.