Marx v. Manhattan Railway Co.

The question is whether the effect of what transpired in the court of the common pleas was equivalent to submitting to a nonsuit. .It seems to me it was. It was not a dismissal of the complaint for neglect to prosecute the action within the meaning of section 405 of the Code of Civil Procedure. That refers to an order made on motion to dismiss for such neglect to prosecute, and is a well-understood proceeding. In the ease at bar the trial was actually commenced. A motion was made to amend, which the court denied. The plaintiff then declined to proceed further with the trial, for the reason that success was hopeless because of such denial. It was quite the same as though he had proceeded and given evidence in support of his complaint as originally formulated. He knew that the proofs would have *223failed to establish his cause of action as thus formulated, and, consequently, that a nonsuit must follow. It was simply a saving of time to acknowledge that this must be the result, in view of the inability to amend. The non-suit was inevitable because the proofs would not support the complaint. He had proofs to support the complaint, as it would have read in ease the amendment had been permitted. The moment, however, the amendment was refused, he was necessarily defeated, and it was as well to acknowledge the situation. In effect, he tried the case, and because of a judicial ruling acknowledged defeat, and in substance submitted to a nonsuit. It was not a neglect to prosecute. He prosecuted and failed. That was the gist of the matter. I must therefore deny the motion, and permit the case to proceed.