ALLAIRE a. LEE

ALLAIRE a. LEE. New York Superior Court; Chambers, December, 1854. Allowance.—What constitutes a Trial. When a plaintiff voluntarily submits to a nonsuit after evidence has been given on both sides, and while the defendant’s counsel is summing up, it cannot be objected to an application by the defendants for an allowance, under § 308 of the Code, that a trial has not been had. Motion for an allowance. After the evidence in the action had been closed, and while the defendant’s counsel was addressing the jury, the plaintiff’s counsel proposed to submit to a nonsuit, and was nonsuited. The defendants moved for an allowance under § 308 of the Code. It was objected that no trial had been had. [MAJORITY — Oaklet, O. J.] Oaklet, O. J. This is a proper case for making an allowance, unless the objection made to it, was well taken. The defendants have recovered a judgment. A regular trial was had, witnesses were examined by both parties, and after the evidence was closed, the plaintiff was nonsuited. If he had been nonsuited on the defendant’s motion, without. any attempt on the part of their counsel to address the jury, no one, I presume, would doubt that a trial had been had. What took place, was none the less a trial, because the nonsuit was voluntarily submitted to, before the defendant’s counsel had concluded the address he was intending to make to the jury. I think the case too clear to need illustration or argument. A proper allowance will therefore be made. (The other justices to whom the point was stated, concurred).