Trustees of Hamilton College, Appellant, v. Edward Roberts and Others, Respondents

Fourth Department, December, 1914. Trustees of Hamilton College, Appellant, v. Edward Roberts and Others, Respondents. Appeal from a judgment of the Supreme Court, entered in the Oneida county clerk’s office on the 17th day of January, 1914. [MAJORITY — Per Curiam:] Per Curiam: We are of the opinion that the construction put upon the contract by the trial court is correct, and that the evidence fails to show, as was held by the trial court, what land is reasonably necessary to answer the requirements of the contract as so construed. It seems to have been the intention of the trial judge not to preclude the plaintiff from bringing another action, and, therefore, to avoid any question in that regard, we think it better that the dismissal of the complaint should be upon the motion for the nonsuit made at the trial, upon which decision was reserved. The decision may be modified so as to show affirmatively that the complaint was not dismissed upon the merits. All concurred; Foote, J., not sitting. Decision of trial court amended by striking out all the findings of fact, and the judgment modified so as to provide that the complaint is dismissed upon the motion for the nonsuit made by the defendant at the close of the evidence, and as so modified the judgment is affirmed, with costs to respondents.