
    Lillian Romaine, as Administratrix, etc., of Wayland D. Romaine, Deceased, Appellant, v. The New York, New Haven and Hartford Railroad Company, Respondent.
    
      Jifonsuit — when granted because of the insufficiency of the evidence and not because of the insufficiency of the complaint—objection that a statutory notice is not alleged need not be taken by demurrer.
    
    Where, upon the trial of an action to recover damages resulting from the death of the plaintiff's intestate caused by the alleged negligence of the defendant, the court at the close of the plaintiff’s proof and before the defendant has given any evidence, directs a verdict of no cause of action” upon the defendant’s motion for a nonsuit on the ground that the plaintiff has failed to prove absence of contributory negligence, such verdict must be deemed equivalent to a nonsuit because of the insufficiency of the evidence and not because of the insufficiency of the complaint.
    
      Semble, that the objection that a complaint does not state a cause of action because it fails to set up a statutory notice required by law is available upon the trial, notwithstanding the defendant’s failure to interpose the objection by demurrer. '
    Rearg-dment of an appeal by the plaintiff, Lillian Romaine, as administratrix, etc., of Wayland D. Romaine, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 5th day of January, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Orange Trial Term.
    
      The opinion delivered upon the original argument of the appeal in this case will be found in 87 Appellate Division, 569.
    
      Robert H. Barnett, for the appellant.
    _Walter O. Anthony, for the respondent.
   Willard Bartlett, J. :

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 compláint 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 á 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 non-suit 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.

Present — Hirschberg, P. J., Bartlett, Woodward, Jenks and Hooker, JJ.

Judgment unanimoüsiy reaffirmed, after reargument, but without further costs.  