(Supreme Court, General Term, First Department,
Filed November 18, 1892.)
Dismissal of complaint—Plaintiff’s opening.
It is improper to dismiss the complaint on the merits upon the plaintiff's opening. In such case a simple dismissal only is allowable.
Appeal from judgment dismissing the complaint on the merits.
Action to restrain defendants from carrying out a certain contract entered into by them as a committee of bondholders of a railroad and from delivering certain bonds in pursuance thereof.
Wm. M. Safford, for app’lts; Frank Sullivan Smith (C. Waite)' Ariz, of counsel), for resp’ts, Dick and another ; Simpson, Thacher & Barnum (Thomas Thacher, of counsel), for resp’t committee.
The case of Brooks v. Dick, 43 St. Rep., 37, was controlling upon the justice at special term, but, as the dismissal was upon the opening of the plaintiff’s counsel, it was erroneous to dismiss the complaint upon the merits. The judgment should be modified so as to direct a simple dismissal of the complaint, and, as thus modified, it is affirmed, without costs on this appeal.
Van Brunt, P. J., O’Brien and Lawrence, JJ., concur.
49 N.Y. St. Rptr. 646
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