Van Wormer vs. The Mayor, &c., of Albany, 18 Wend. 92

After advisement, the following opinion was delivered: By the Chancellor. [172] [173] The writ of error in this case is brought upon a judgment of nonsuit, upon which no legal question can arise here.

Even if the bill of exceptions, which was taken at the circuit, and is printed with the case in this court, could be considered to have the same operation as if it had been incorporated in the record, I do not see how it could possibly aid the plaintiff in reversing the judgment, because from the bill of exceptions it does not appear that the plaintiff was improperly nonsuited by the circuit judge, or against his consent.

On the contrary, it appears that he voluntarily abandoned his cause and submitted to a nonsuit, without any application for such nonsuit on the part of the defendants, and probably against their wishes. It is settled in this state, that if the plaintiff fails to make out his ease,so as to authorize the jury to find a verdict in his favor, the defendant may move for a nonsuit, which the judge is bound to grant even without the plaintiff’s consent.

In such a case, therefore, if the plaintiff thinks the decision of the judge in granting the nonsuit, erroneous, he has a right to tender a bill of exceptions, for the purpose of raising the question of law upon the evidence adduced, and also to show that the nonsuit was compulsory and not voluntary on his part.

If he wishes to .avail himself of an objection to any other decision of the judge, either as to the admission or rejection of testimony, or as to the charge, he must take his bill of exceptions and proceed with»the cause before the jury; but if he voluntarily abandons his cause, either before the jury have retired, or after they have returned to the bar to deliver their verdict, he cannot avail himself of his bill of exceptions upon a writ of error, to reverse the judgment of nonsuit which was the necessary consequence of his own act.

It is true, upon an application for a new trial upon a case made in the same court, where the granting or refusing the new trial is a matter of discretion, if it appears that the decision of the judge who tried the cause went to the whole merits of the case, so that it would have been wholly useless to the plaintiff to go on if such decision was correct, the court in the exercise of a sound discretion may grant a new trial, if such decision was erroneous, although the nonsuit was submitted 'to voluntarily.

But upon a writ of error founded upon a bill of exceptions, both parties stand upon their strict'legal rights ; and this court cannot reverse a judgment of nonsuit which has been produced by the voluntary act of the plaintiff, and which does not therefore legally connect itself with any supposed error in a previous decision of the judge at the trial. Again: the second plea, if true, furnished a valid defence to the suit, and the replication to that plea does not put in issue either the existence of the nuisance or the fact that the board of health ordered the same to be abated as such.

It only puts in issue the residue of the matters stated in the pica, which were not embraced by the admission or by the protestando. The residue of the cause mentioned in the plea was the fact, that the defendants entered upon, the premises and did the acts complained of, to abate the nuisance, doing no unnecessary damage to the plaintiff. Under this state of the pleadings, the complainant had no right to dispute the existence of the nuisance, nor were the defendants bound to prove that the board of health ordered it to be abated by digging down the lots.

If no legal order could be made unless in writing, then the replication must be considered as an admission that such an order, in writing, was in fact made.

The only questions, therefore, upon which the plaintiff had any right to go to the jury, were as to the residue of the causes mentioned in the plea and put in issue by the replication; and as to these questions, if the plaintiff supposed he could succeed upon the evidence offered, or if he had any other evidence to give, he should have gone to the jury instead of abandoning his cause and submitting to a nonsuit. [174] Upon the two questions raised at the circuit, neither of which are entirely free from doubt, I do not think it necessary to express an opinion, as neither of them can properly arise under these pleadings, even if a venire de novo should be awarded.

The true history of the case, I think, may be gathered from the testimony- stated in the bill of exceptions. It appears that the plaintiff, after the existence of the nuisance was ascertained, came before the board of health himself and made statements. Not that there was no nuisance, the existence of which, probably, no one thought of denying. But he complained of the hardship of being obliged, to abate it at his own expense, being only a lessee for a short term.

And I presume, from .he hardship of the cáse, and to save him from the heavy penalty which the law would inflict upon him, if he. refused to obey the order, it was thought best to direct the corporation to do it, under an ordinance to be made for that purpose ; probably under the supposition that in that way the necessary expense of digging down the lots could be charged upon those who would be more benefited thereby, and that for this reason no formal order was in fact put in writing and entered in the minutes of the board of health.

If such was the fact, it was the duty of the corporation to endeavor to abate the nuisance even without an order. And if they entered for, that purpose, and were doing in good faith what it was the duty of the plaintiff to have done himself, until the ceasing of the pestilence rendered further proceedings unnecessary, he has no right, in this form of action at least, to recover anything of the corporation; although they did not afterwards proceed and level his lot for him, when they found the expense could not he assessed upon the owners of the adjoining lands.

Upon no principle, therefore, is this court authorized to disturb the judgment of nonsuit which the plaintiff has suffered voluntarily to be entered against him ; and the judgment of the supreme court should, therefore, be affirmed. On the question being put, Shall this judgment he reversed? all the members of the court (20 being present) voted in the negative: whereupon the judgment of the supreme court was affirmed. Judgment affirmed.