#### G. K. Denton v. Central School Supply House.

1. Non-suit— When the Plaintiff May Take.—Where the trial is by the court without a jury, the plaintiff may take a non-suit at any time before the finding of the court is recorded.

2. Waiver—Not by a Motion for a New Trial.—A party waives no right by pointing out errors which he alleges the court had made upon the trial.

Assumpsit, etc. Appeal from the County Court of Cook; the Hon. Orrin N. Carter, Judge, presiding.

Heard in this court at the October term, 1895.

Reversed and remanded with directions.

Opinion filed December 12, 1895.

Young, Makeel & Bradley, attorneys for appellant.

Weigley & Eastman, attorneys for appellee.

*268Mr. Justice Waterman

delivered the opinion ot the Court.

Appellant being the plaintiff upon a trial without a jury in the County Court, before any finding had been recorded, asked that he be permitted to take a voluntary non-suit; this request the court denied. Afterward the plaintiff moved for a new trial and argued the same; this, it is urged by the appellee, was a waiver of appellant’s right to the non-suit for which he had before asked.

We do not think that such was the effect of the motion for a new trial. Appellant waived no right by pointing out errors which he alleged the court had made upon the trial. The right, under the circumstances, to take a voluntary non-suit was absolute. Shabad v. Hanchett, 40 Ill. App. 545; Howe v. Harroun, 17 Ill. 494; Prindeville v. Leon, 11 Ill. App. 657; Wilson Sewing Machine Co. v. Lewis, 10 Ill. App. 194; Stanton v. Linsey, 151 Ill. 301.

The judgment of the Circuit Court is reversed and the cause remanded with directions to enter a non-suit.