Opinion
January, 1904.
Robert H. Barnett, for the appellant.
Walter C. Anthony, for the respondent.
Present — HIRSCHBERG, P.J., BARTLETT, WOODWARD, JENKS and HOOKER, JJ.
In reference to the point made upon the original argument of this case, that the complaint in the Dutchess county action was radically defective and demurrable, because of the omission to set up therein the giving of the statutory notice required by the laws of Connecticut, we expressed the opinion that the validity of the defense based on the pendency of the Dutchess county action was not affected by that fact, inasmuch as the defendant in that suit did not interpose any objection that the statutory notice was wanting. We added: "If the complaint was demurrable, the right to demur had been waived." The expression quoted was probably incorrect, inasmuch as the defendant had the right to object to the sufficiency of the complaint upon the trial, notwithstanding his omission to demur on that ground; but I do not think that this error affects the validity of our conclusion. While the proof as to what occurred in the Dutchess county suit is somewhat meager, it affords no indication whatever that the defendant prevailed therein or sought to prevail on the ground that the complaint did not state a cause of action. The motion was for a nonsuit on the ground that there was no evidence of lack of contributory negligence. The court thereupon directed a verdict for defendant of "no cause of action." I do not understand this to mean that the court dismissed the complaint because of any defect therein. As I have already intimated, there is no suggestion that it was attacked on that ground. The direction of a verdict of "no cause of action" at the close of the plaintiff's proof, without any evidence having been offered in behalf of the defendant, and upon the defendant's motion for a nonsuit on the ground of a failure to prove an absence of contributory negligence, must be deemed, I think, equivalent to a nonsuit because of the insufficiency of the evidence and not because of the insufficiency of the complaint. The case would be quite different if the objection had been taken in the first action that the complaint was fatally defective on account of the omission to plead the statutory notice, and the defendant had prevailed upon that objection. As the proof stands it seems to me that such objection was in fact waived in the Dutchess county suit; and if this view is right I think the conclusion reached on the original argument of the present case was correct.
Judgment unanimously reaffirmed, after reargument, but without further costs.