
    Irving J. Ussiker, Appellant, v. William H. Mahoney, Respondent.
    (Supreme Court, Appellate Term,
    May, 1910.)
    Discontinuance — Eight to discontinue — Before submission to jury. Municipal Courts — Procedure — Discontinuance — Before submission.
    At the close of the rebuttal testimony, in an action on a promissory note against the maker, there being no entry in the minutes that both sides rested or that plaintiff finally rested, a motion for a voluntary nonsuit is proper, as the case has not been finally submitted ” within the meaning of section 248 of the Municipal Court Act.
    A judgment for defendant, rendered after plaintiff’s motion for a nonsuit had been denied on the theory that the ease had been submitted within the meaning of section 248 of the Municipal Court Act, is erroneous.
    Appeal by the plaintiff from a judgment in favor of the defendant, entered in the Municipal Court of the city of Mew York, second district, borough of Manhattan, after a trial before the court without a jury.
    Goldstein & Goldstein, for appellant.
    Bogart & Bogart, for respondent.
   Bijur, J.

The action was brought against defendant, a city policeman, on his demand note for fifty dollars, made October 21, 1909, to the order of one Minnie Hoffman. For this he received a loan of fifty dollars in the form of her check, dated October 20, 1909. He cashed the check in company with one Seiff, a loan Broker, who received twelve dollars commission. Plaintiff testifies that he Bought the note for fifty dollars about December fifth, sixth or seventh. The defense is usury. Plaintiff claims to have met Minnie Hoffman quite casually at the bank and to have then bought the note. He admits that he had had some previous business with Seiff, the broker.

At the conclusion of the testimony, namely, of the rebuttal (there being no entry in the minutes either that both sides rested .or that plaintiff finally rested), plaintiff asked to be allowed a nonsuit. The judge refused this, on the theory that the case under section 24*8 of the Municipal Court Act had already been “submitted” to him; and there- ' upon gave judgment for the defendant.

If the refusal to allow the nonsuit was correct, the judge was warranted in believing that the plaintiff was not an innocent holder for value, but was in connivance with Minnie Hoffman and Seiff, thus making the note usurious.

The authorities do not define the word “submitted,” so far as it may refer to a judge sitting without a jury. One case at least indicates that it means after the judge has reserved his decision and taken the case under advisement, the court significantly adding that, while the case “ is under advisement,” the judge should not consult with either of the parties. Hess v. Beakman, 11 Johns. 457. See also Gillilan v. Spratt, 3 Daly, 440; Peters v. Diossy, 3 E. D. Smith, 115; Elwell v. M’Queen, 10 Wend. 520, 521; 14 Cyc. 403.

In view of the condition of the record at bar*, it cannot fairly be said, under any interpretation, that the “ action has been finally submitted.”

Therefore, the judgment is reversed, with costs of the appeal to the plaintiff, and the complaint dismissed, without prejudice to a new action, with five dollars costs to defendant.

Seabury and Guy, JJ., concur.

Judgment reversed, with costs of appeal to plaintiff, and complaint dismissed, without prejudice to a new action, with five dollars costs to defendant.  