The Law And Practice in Civil Actions And Proceedings in Justices' Courts, And in Other Courts Not of Record And On Appeals to the County Courts in the State of New York : Including the Principles of Law Relating to Actions Or Defenses; the Rules of Pract

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Meelcer, 25 N. T. 361. Where the uncontradicted evidence in a case establishes the defense of usury, it will be error to refuse a nonsuit if it is demanded. lb. That the jury might choose to discredit unimpeached evidence, which is not incredible on its face, is no reason for submitting it to their consideration. lb.
But if a nonsuit is asked, at the close of the plaintiff's evidence, on the ground of a defect in the proofs, the court ought to permit the defect to be supplied, if the plaintiff
...offers to give the necessary evidence. Lewis v. Eyder, 13 Abb. 1. A refusal to receive the evidence will be sufficient ground for reversing the judgment. lb.
And where the evidence has been closed, and the cause summed up on the part of the defendant, a new trial has been granted be- cause of a refusal to receive material evidence at that stage of the cause. Mercer v. Sayre, 7 Johns. 306.
When a motion is made for a nonsuit at the close of the plain- tiff's case, on account of a defect in his proofs, the defendant must be careful that he does not subsequently supply the defect; for, if he does, the error in refusing the nonsuit will be waived.


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