
    ANSEN v. BURT.
    (City Court of New York, General Term.
    November 20, 1894.)
    Dismissing Complaint—Stage of Trial.
    It is error to dismiss the complaint before plaintiff has presented alt his evidence.
    Appeal from trial term.
    
      Action by Thomas Ansen against Charles A. Burt for work, labor, and services. From a judgment dismissing the complaint, plaintiff appeals. Reversed.
    Argued before VAFT WYCK and MCCARTHY, JJ.
    Foley & Wray, for appellant.
    Carpenter & Mosher, for respondent.
   McCARTHY, j.

This is an appeal from a judgment dismissing the plaintiff’s complaint. The plaintiff had been examined and cross-examined, but the same was not concluded, when the trial justice said he would not allow this case to go to the jury, and thereupon dismissed the complaint. The action was for work, labor, and services as captain of a certain barge at $13 per week for seven weeks, and as watchman for 11 nights at the rate of $1 per night, and for other services particularly detailed. The evidence presented a question of fact, part of the amount being admitted by the defendant’s answer. The court erred in dismissing the complaint. It should have permitted the plaintiff to present all his evidence, and then submitted the question to the jury. The libel in the United States court against the steam tug Meta to recover for personal injuries was not a bar to this action. It was not between the same parties, nor for the same claim, and was in no way connected with the claim in suit. Flor are the facts alleged in the libel inconsistent with the claim in suit. The only purpose for which it could be used in this case is on the question of credibility of the witness, and this should have gone to the jury. Judgment is therefore reversed, and a new trial granted, with costs to the appellant, to abide the event.  