
    NEW YORK SUPERIOR COURT.
    Stewart agt. Hamilton.
    A non-suit should not be granted on the ground that the plaintiff’s counsel has not stated in Ms opening sufficient facts to constitute a cause of action.
    
      Trial Term,
    
    
      January, 1865.
    The counsel for the plaintiff having opened his case in an address to the jury, the counsel for the defendant moved for a non-suit.
    Ira D. Warren, for plaintiff.
    
    John H. Anthon, for defendant.
    
   Barbour, J. (orally).

I think it is not good practice to non-suit upon the plaintiff’s opening address to the jury, and for the reason alone that he has failed to state to them sufficient facts to constitute a cause of action, although I am aware that such a practice has obtained in some of our courts. In his opening, the plaintiff’s counsel may properly and usually does, state such facts only as he desires to impress upon the minds of the jurors. To hold him in his address to the exactness and certainty of a pleading, would, in many cases, be to impose upon him a duty which it would be exceedingly inconvenient if not impossible for him to perform orally. Indeed, I see no reason why he may not state to the jury, or refrain from stating just so much of the case as his judgment dictates.

I do not mean to say that a fatal admission made by the plaintiff’s counsel in his opening, may not entitle the defendant thereupon, to a judgment dismissing the complaint, without the formality of taking evidence which must necessarily be useless. This motion, however, is not based upon such an admission, but.merely on the ground that the counsel has not stated in his opening sufficient facts to constitute a cause of action. It must therefore be denied.  