
    George M. Allen, Appellant, v. The Rector, Etc., of The Church of the Beloved Disciple, Respondent.
    (Supreme Court, Appellate Term,
    April, 1896.)
    1. District Court—Judgment.
    Where' a motion to dismiss the complaint .for insufficiency of the evidence is denied by the justice of a District Court; and> the case submitted without objection from the plaintiff, such acquiescence on his part is equivalent to a consent that the cause be determined on the merits, and operates as a waiver of the provision of section 1382 of the Consolidation Act.
    Si; Services — Agency,
    Where the issues in an action, for- services involve the question of the authority of an officer of the defendant to make the contract and alleged admissions of liability, and the evidence is mainly given by the plaintiff- and of such officer, a decision in favor of the defendant will not be disturbed. . •
    Appeal from a judgment for the defendant rendered by the • District Court in the city of New "York, for the sixth judicial •district. .
    Action for work,, labor and services rendered, and materials furnished.
    Sproull, Uarmer & SprouB, for appellant.
    Morgan, Whiton & Mitchell, for respondent..
   Bischoff, J.

The action-was to recover, the-fair and reasonable . value of services rendered and materials furnished in- and about the supply of a number of pamphlets descriptive of the defendant’s edifices and works, and the only issue litigated at the trial was whether, or not, the services were rendered and the materials furnished at the instance and request of the defendant, and upon its promise to pay therefor. The justice below rendered judgment “ in favor of the defendant and against the plaintiff, with $10 costs; ” and from such judgment the plaintiff has appealed. •

It is conceded for the appellant that the evidence was insufficient to entitle him to recover, and such indeed it was, no authority in the person at whose immediate request the work was done to ■conclude the defendant by a contract in its behalf having been shown; and the appellant urges as the only ground for-, reversal of the judgment that it proceeded upon the merits of the controversy, whereas it ought of right to have been that the action be dismissed, with costs,, without prejudice to a new action ” (Consolidation Act, Laws 1882, chap. 410, § 1382), as in case of a non-suit.

No evidence was given for the defendant other than the testimony of one of its officers in denial of an alleged admission testified to in the plaintiff’s behalf, but the denial was wholly immaterial in view of the general insufficiency of the evidence for the plaintiff upon the point alluded to. From the record of the proceedings at the trial, however, it appears that when the introduction of evidence for both sides was concluded the defendant’s counsel moved the dismissal of the complaint for insufficiency of the evidence to sustain the cause of action. The justice denied the motion, in which ruling the plaintiff acquiesced, and the cause was thereupon, without objection from the plaintiff, submitted to the justice for decision. ’ The only reasonable inference from the facts, so appearing is that the plaintiff maintained the sufficiency of the evidence, and consented to a determination of the action upon the merits.; and such a determination having been had no error is apparent therefrom, and the plaintiff should be thereby precluded. No question can arise with regard to the jurisdiction of the justice to render a judgment upon the merits, which is final and conclusive between the parties, and in so far as the provision of the Consolidation Act, hereinbefore alluded to, was for the benefit of the plaintiff, it was competent to the latter to waive it. Roberts v. Baumgarten, 126 N. Y. 336, 341; Sherman v. McKeon, 38 id. 266, 274; Shutte v. Thompson, 15 Wall. (U. S.) 151; Book 21, U. S. Ct. R. L. ed. 123.

Interest reipublicae ut sit finis litium. Broom’s Legal Maxims (8th Am. ed.) pp. 331, 343. Hence upon appeal a party will be held to the position assumed upon the- trial (Fay v. Muhlker, 1 Misc. Rep. 321, 323, and eases collated; 7 Am. &■ Eng. Ency. of Law, 22, note “ Inconsistent position' in legal proceedings generally; ” Bigelow on Estoppel, 578); and the plaintiff cannot now urge that the evidence was insufficient to support a recovery, or that the justice was. not. authorized to determine the action upon the merits.

Assuming the' evidence to have been sufficient, it rested in the main with regard to the contractual authority of the person at whose immediate request the plaintiff did the work, or the ratification of his unauthorized act, upon the statements of the plaintiff, a witness interested in the event of the action, whose credibility, therefore, remained to be determined by .the justice, (29 Am. & Eng. Ency. of Law, 774); and so, in such aspect of the evidence also, the judgment was rightfully rendered. The statements were of an alleged admission of liability by one of the defendant’s officers, denied by the latter as a witness for the defendant. No preponderance of the evidence in favor of the plaintiff is, therefore, apparent.

The judgment is affirmed, with costs.

Daly. P. J., and McAdam, J., concur.

Judgment affirmed, with costs.  