The plaintiff sued to recover for work and labor in painting certain roofs of buildings belonging to the defendant. The answer set up that the work was performed under an express contract, by which the plaintiff warranted that the painting would make the roofs water-tight; that it did not produce that effect; and the defendant claimed damages for the non-fulfilment of the contract. On the trial, evidence was introduced by both sides; but, before the case was finally submitted, the plaintiff stated that he should withdraw the action, and asked that a judgment of non-suit be entered against him. The justice refused, and subsequently gave judgment in favor of the defendant for the damages claimed.
In this the justice clearly erred. The plaintiff, at any time before the action was finally submitted, had a right to discontinue it; and, in such a case, it was the duty of the justice to give judgment dismissing the action with costs, and without prejudice to a new action. See District Court Act, 1 Laws 1857, p. 707, § 45; Gale v. Hoysradt, 7 Hill, 179; Norris v. Bleakley, 3 Abbott P. R. 107.
Judgment reversed.