Crane v. Miller

PEE CUBIAM.

The judgment we must assume to be as corrected by the trial judge. He could better determine what took place on the trial than we can upon the conflicting affidavits before us, and he had the right to amend the judgment so that it would conform to the decision that he then made. Assuming it to be as amended, a judgment was recovered by defendant. It is something more than a mere nonsuit. It secures to defendant protection from ever again being prosecuted for the 11 causes of action first set forth in the complaint. The Burns Case, 135 N. Y. 268, 31 N. E. 1080, holds that a nonsuit does not give to defendant such a recovery as entitles him to costs under the provisions of section 3234 of the Code of Civil Procedure. It does not decide anything more, and is not applicable to a case like this. The Moosbrugger Case, 7 App. Div. 380, 40 N. Y. Supp. 213, goes to the extent which plaintiff here claims; but it was decided by a divided court, and has been expressly dissented from in Welling v. Manufacturing Co., 15 App. Div. 116, 120, 44 N. Y. Supp., 374. See, also, Browning v. Railroad Co., 64 Hun, 513,19 N. Y. Supp. 453. We are of the opinion that the judgment rendered for defendant entitled him to costs under the section above quoted, and that the order appealed from should be affirmed.

Order affirmed, with $10 costs and disbursements.