Andrew J. Nutting, Appellant, v. The Kings County Elevated Railroad Company, Respondent

Andrew J. Nutting, Appellant, v. The Kings County Elevated Railroad Company, Respondent. Bequest for a ruling in advance — its refusal not the subject of an order or an appeal •—withdrawal of a juror, a mistrial. Upon the second trial of a case the court permitted certain amendments to the complaint. After a jury had been impaneled on a third trial, the plaintiff moved that the trial proceed upon the amended complaint and the answer of the defendant, and not upon the original complaint and answer, and the plaintiff requested the court to pass upon the question at that stage of the proceedings. The court refused to do so, but allowed the plaintiff to withdraw a juror, and the case went off for the term. The plaintiff entered an order reciting his request and its denial and appealed from the .order. Held, that there was no authority for the entry of an order and none for the appeal; That the court, by merely expressing an opinion as to the ruling which it would make when the question actually arose, did not authorize the entry of such-an order; That when a juror was withdrawn there was simply a mistrial. Appeal by the plaintiff, Andrew J. Nutting, from au order Of the Supreme Court, made'at a Trial Term thereof, bearing date the 16th day of January, 1896, and entered in the clerk’s office of the county of Kings, denying plaintiff’s motion that the trial of the action proceed upon an amended complaint and answer, and also denying plaintiff’s motion for leave to amend the complaint upon the trial, 'as specified in said order, and from every portion of said order except the direction therein contained that a juror be withdrawn and that' the cause go off the calendar for the term. Edward M. Grout, for the appellant. Delos McCurdy, for the respondent. [MAJORITY — Cullen, J.:] Cullen, J.: This action has been twice tried. On each trial plaintiff has recovered a verdict and had judgment entered in his favor. Both judgments have been reversed by the General Term and a new trial ordered. On the second trial the court permitted certain amendments to the plaintiff’s complaint. When the cause was brought on at Circuit for a third trial and after the impaneling of a jury therein, the order appealed from recites that the plaintiff moved “ that this trial proceed upon such amended complaint and the answbr of the defendant, and not Upon the original complaint and the answer of the defendant, and requesting the court to pass upon this question at this stage of the proceedings.” It was ordered that the said motion be denied. The plaintiff was allowed to withdraw a juror and the case went off for the term. We see no authority for this appeal. The juror having been withdrawn there was simply a mistrial. The order appealed from neither granted any amendment to the pleadings, nor denied any application, for amendment. The law directs how trials shall proceed, and no order' of the court thereon was either requisite or appropriate. The action qomplained of was, in fact, a mere ruling-on the trial, or rather an expression of opinion of how the court would rule when the question actually arose, which could only occur during the progress of the .trial. Intimations are sometimes given by the court as to its view on a question of law which will determine the result of the trial in advance of the occasion which calls for the ruling, for the purpose of saving time, both of the court and. counsel. In such case it is the duty of the party aggrieved to put his evidence or case in such position as. will jiroperly present the question involved; submit to an adverse result, and review the ruling either on appeal from the judgment or by a motion for a new trial. There is no authority, however, for reviewing any ruling of the court upon the trial, save by exception and subsequent appeal. There was no more authority for entering an order on the ruling of the court, made at the opening of the case, than there would have been on a ruling made either in the exclusion of evidence, or in the charge to the jury on the same subject. The so-called ruling or order of the court was a mere expression of opinion, which in no wise can control any subsequent trial. As to the future it is a mere nullity, but the plaintiff cannot raise this objection, as the order seems to have been entered at his request. The cases cited by the plaintiff are not in point. In People ex rel. Lardner v. Carson (78 Hun, 544) there was no ruling on the trial, but the court refused to allow the cause to proceed to trial and struck it from the calendar. This action of ijie court violated a substantial right of the plaintiff, for he must go to trial before there could be any judgment rendered in the action from which he could appeal. It was, therefore, justly the subject of review, either by appeal or by mandamus, and no question as to the propriety of the remedy appears to have been raised. In Schoonmaker v. Blass (88 Hun, 179) the order appealed from granted an amendment to the pleadings, and such amendment was not made as upon trial, for the cause was put over the term. Such an order was unquestionably the subject of direct review. The appeal should be dismissed, but, as we regard the order appealed from as a nullity, there should be no costs of this appeal. All concurred. Appeal dismissed, without costs.