
    Sam. G. Stern et al., Appellants, v. Robert Frommer, Respondent.
    (City Court of New York
    General Term,
    November, 1894.)
    It is error for the court to direct a verdict for the defendant at the close of the plaintiff’s evidence; at most, the plaintiff can only he nonsuited at that stage of the case.
    Appeal by plaintiffs from judgment on verdict of jury directed by the court.
    
      Eastern Bros., for appellants.
    
      Ohas. F. Holm, for respondent.
   Van Wyck, J.

At the close of plaintiffs’ case the court directed a verdict for defendant, and on such verdict the judgment was entered from which this appeal is taken. This was error, for, at most, a plaintiff can only be nonsuited at the close of his case, and may thereafter bring a new action for the same cause, first paying the costs of the action in which he was nonsuited; but not so if the judgment is upon a verdict of the jury, for such judgment is a bar to a subsequent action for the same cause. The plaintiffs’ proof shows that their salesman called at defendant’s saloon at a time when defendant was in charge of his saloon, and took an order for a barrel of whisky for defendant from one Helmuth, then dealing with such salesman as buyer for defendant, and that Helmuth Avas also defendant’s bookkeeper at a salary of ten dollars per week. The plaintiffs made proper effort to prove delivery of this barrel of whisky to defendant, by showing by their salesman that he had subsequently seen the same in defendant’s saloon, but on defendant’s objection were not allowed to do so, and to all of which plaintiffs excepted.

The judgment reversed and a new trial ordered, Avith costs to appellants to abide the event.

Ehrlich, Ch. J., and McCarthy, J., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.  