
    JOHN B. ELMENDORF, DEFENDANT IN ERROR, v. AMERICAN CONSTRUCTION COMPANY, PLAINTIFF IN ERROR.
    Submitted December 11, 1911
    Decided March 4, 1912.
    Motion for nonsuit properly denied.
    On error to the Supreme Court.
    For the plaintiff in error, George W. Flaaclee.
    
    For the defendant in error, Vredenburgh, Wall & Carey.
    
   The opinion of the court was delivered by

Garrison, J.

This writ of error to the Supreme Court brings up the judgment affirming the judgment of the Hudson. Circuit in which the issue was tried. The per 'curiam opinion filed in .the Supreme Court deals with a number of assignments of error of which the plaintiff in error in this court relies upon but one, viz., “The refusal of the trial court to grant the defendant’s motion for a nonsuit.” The language of the per cuñam pertinent to this topic is as follows: “Whether the contract of employment of defendant was terminated, as defendant claimed, in September, LÜ0?, was a question of fact. So, too, whether the plaintiff was a mere volunteer presented a question of fact for the jury.” We concur in each of these conclusions. We also concur in the correctness of the ruling of the trial judge for an additional reason staled by him, viz., “that the whole of this claim is not for services rendered and consequently there cannot he a nonsuit.” This .ground for refusing the motion was justified by the fact that the plaintiff’s case included sundry items of expenditure not within any ground of non-suit and for which under the common counts he was entitled to go to the j ury.

The judgment of the Supreme Court is affirmed.

For affirmance—Thin Chancellor, Garrison, Swayze, Parker, Bergen, Yooruees, Kallscu, Bogert, Vredenrurgjl, Vrqqyl, Congdon, White, Treaoy, JJ. 13.

For ieversa.1—bfone.  