Crane v. Miller

The judgment wé 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 con- • form to the decision that he-then made. Assuming it tó 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 I prosecuted for the eleven causes of action first set forth in the complaint- The case of Burns v. D., L. & W. R. R. Co. (135 N. Y. 268) 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. It does not decide anything more, and is not applicable to a case like this. Moosbrugger v. Kaufman (7 App. Div. 380) goes to the extent which plaintiffs here claim, but it was decided by a divided court, and has been expressly dissented from ia Welling v. Ivoroyd Manufacturing Co. (15 App. Div. 116, 120). (See, also, Browning v. N. Y., L. E. & W. R. R. Co., 64 Hun, 513). We aré óf 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. All concurred.