The opinion of the court was delivered by
Freund, J. A. D.
Plaintiff Harry Handleman appeals from a judgment of the Superior Court, Law Division, dismissing his personal injury action at the close of his case against defendants Prank H. Cox and Jack A. Tillotsen, individually and t/a J & J White Diamond Co. The accident occurred on June 6, 1958, when plaintiff fell down a flight of stairs leading from the kitchen to the basement of defendants’ premises.
Handleman has been employed by the Senak Corporation since May 1957 as a salesman and bill collector. Senak is a retail dealer of household goods, including silverware, electrical appliances, watches, blankets, sheets, pillow cases, dishes and lamps. Senak’s representatives negotiate sales with members of the public on an individual basis and then periodically return to collect the installment payments from the buyers.
Cox and Tillotsen concede that they own and operate the J & J White Diamond Diner in Plainfield, N. J. The premises consist of a one-story diner-hamburger stand containing a dining area, kitchen and basement. The dining area and counter are in the front of the building, with the kitchen in the rear. The public enters the diner through a door that fronts on a street; a parking area surrounds the rest of the building. The only other entrance to the building is through a door in the rear of the premises.
In April 1958, approximately two months before the accident, Llovd W. Bateman, an employee of defendants, purchased some merchandise from a Mr. Goldberg, another Senak salesman. This sale took place at the counter, as did Bateman’s installment payments of $1 per week.
In May 1958 Harold L. Cox, defendant Cox’s liephew and a counterman at the diner, purchased a set of silverware from a Senak salesman, but not from Handleman. lie purchased the merchandise and made his weekly payments at the counter.
Handleman testified that in the course of his employment with Senak he went to the White Diamond for the first time on June 6 at about 11:30 A. M. to make collections. He explained that:
“* * * every once in a while we had new cards come into our routes which salesmen made on the outside. They come in your territory, and automatically you get those cards in your route. Whatever day it is, you get those new cards in there. At that time I had three new cards for the White Diamond.”
He entered the diner through the front door and saw two of defendant’s employees, Lawson and Savage, working behind the counter. Lawson was at the hamburger stand, and Savage was making coffee. There were a number of customers in the diner; “the place was full * * * all the stools were taken.” Handleman introduced himself to Lawson, who inquired if he had any silverware for sale. As the result of this conversation Handleman went to his car for two boxes of silverware. Plaintiff was told by Lawson to bring the silverware into the kitchen area through the rear door.
Handleman left through the front door and removed the silverware from his car, which was apparently parked behind the diner. Each box measured about 18 inches long, 12 inches wide and 5 inches deep. He held these boxes in front of him as he approached the open rear door.
The rear doorway of the diner is located approximately in the center of the rear of the building. The door swings away from the building towards the left. Directly inside the door is a slightly raised platform, about 38 inches wide by 29% inches long. At the far end of this platform, directly opposite the doorway, is the stairway opening measuring several square feet. Prom that end of the platform the stairway extends down to the basement.
From the photographs received in evidence we observe that, as one looks into the building through the rear door, the opening leading to the basement is bounded, on the left, by a wall that extends from the rear door into the kitchen and, on the right, by the kitchen floor. That floor is raised several inches above the level of the platform. The platform, as noted, forms the third or near side of the opening, while an extension of the kitchen floor forms its fourth or far side. A wooden railing about four feet high surrounds this opening on the two sides formed by the kitchen floor. The opening, however, is in no way enclosed at the top of the stairway. To enter the kitchen area from the outside, then, one must step up onto the platform, turn to the right and step up to a higher level onto the kitchen floor.
Handleman approached the open door at an angle, his left side nearest the building. As he drew near the door he observed Lawson standing by the railing. He also noticed a coffee container carton, 2 feet high and 18 to 24 inches wide, standing on the platform. He testified that, “All I seen was the box and the rail. Anything else I did not see. * * * At that time I didn’t know it [the carton] was in front of the stairs, but it was right in front of the stairs and you could not see nothing.” While plaintiff conceded that the carton did not cover the entire width of the passageway into the basement, nevertheless, “you could not see anything * * *.” Handleman then stepped up on the platform and
“went to my right, where Mr. Lawson was standing there. There is a little rail there. He told me to put the two sets of silverware down, which I did. Doing that, I just made one move, and down the stairs I went. Mr. Lawson grabbed the boxes.”
Plaintiff fell to the bottom of the stairs, injuring his shoulder, elbow, hip and side. He remained in the basement resting for 10 or 15 minutes before he “crawled” upstairs, left the boxes of silverware with Lawson and Savage, and had them sign a receipt for the merchandise. Plaintiff left the diner and went directly home.
Savage testified that he had never purchased any Senak merchandise prior to June 6, although he and Lawson had previously discussed such purchases. He corroborated Handleman’s testimony of the time of his arrival, the number of customers at the diner and that all the stools at the counter were occupied. He had no discussion with plaintiff while he was in front of the diner but he observed that after Handleman had spoken to Lawson, the salesman left by the front door. Savage was by the grill and from that position saw plaintiff enter the rear door. He also observed the coffee container carton on the platform. At the precise moment that Handleman fell into the cellar, however, Savage was waiting on customers and did not witness his fall. Savage testified that neither of the defendants was in the diner at the time these events took place. He also stated that “the supply man” had placed the carton on the platform 10 or 15 minutes before Handleman came to the rear door.
Lawson did not testify at the trial. Savage stated that the last time he heard of Lawson was “a year or a year and a half” before the trial.
Richard M. Newman, a licensed architect, testified that the construction of the stairway and platform violated the local building ordinance and the National Building Code, both of which were received into evidence, in two respects: (1) the stairs should have been enclosed at the basement and first floor landing for the safety of those using the stairs and for fire protection; and (2) the depth of the platform (29%") did not meet the minimum required under the circumstances.
Defendants admitted the following in the demands for admission served on them by plaintiff: (1) “that deliveries of food supplies and merchandise were made through the rear door at the time of the accident, and for some time prior thereto”; (2) “that deliveries of merchandise were regularly made to the rear entrance of defendant’s premises by suppliers * * and (3) “that sales of silverware were made by plaintiff to Olay Lawson, and Marvin Savage in the rear of the store, after the fall down the cellar stairs.”
Portions of defendant Cox’s deposition were read into evidence. He admitted knowing that Senak salesmen came to his diner to sell silverware but was not sure if he had himself purchased any Senak merchandise. He stated that if he had made any purchases they were completed in the front of the diner “because I don’t allow nobody in the back.”
Defendant Tillotsen stated in his deposition that he “never purchased anything” at the diner for his home or personal use. He knew that Bateman and other employees had made such purchases:
“Because they used to take money and pay for this, what they bought, and put down on the books, when this man came around to collect for whatever they bought. You know, this take-out money, if they didn’t have the money they would put it down on a take-out slip.”
Tillotsen stated that he first knew plaintiff had fallen when he came to the diner in the afternoon of June 6 and “Lawson told me that a man fell down the stairs.”
At the conclusion of plaintiff’s case, defendants moved for dismissal of the action. They claimed a dismissal was warranted whether Handleman be considered a trespasser or a licensee. Parenthetically, we observe that defendants, under the terms of the pretrial order, contended that plaintiff’s status “at the time of the accident was that of a mere licensee.”
At the conclusion of the argument the trial judge stated:
“* * * I cannot see how I can send this case to the jury. * * * I would say from the facts in this case it might be inferred that there was either an implied invitation or a license (probably implied invitation) that permitted the employees of the owner to have salesmen call upon them in the diner, but I cannot see how 1 could allow « jnrj to decide that there was anything but a trespass insofar as the rear of the premises were concerned, and that being so, I cannot find any willful injury, hidden tz-ap, and I would be unwilling to submit it to the jury on that basis.
I agree with the thesis of Mr. Kent that there would have to be an implied invitation to the rear of the premises, and there is no fair inference of that.
I will grant the motion.” (Emphasis added)
Plaintiff then moved to reopen his ease and made an offer of proof of an investigator’s report made by A. J. Anderson. The report stated:
“Mr. Cox [the defendant] has himself purchased merchandise from these Senak salesmen * * * and he knows that his employees have made similar purchases. These salesmen would usually come in the front entrance but if the place was busy they would be asked to come around to the back entrance which leads into the kitchen. This back entrance is not a public entrance * * * but exceptions were made for these salesmen.”
Anderson was in the court room prepared to testify to the contents of his report. Plaintiff’s attorney generally indicated he had intended to question defendant Cox, when he took the stand, as to whether he had-made these admissions to Anderson. Had Oox denied the statements, he then intended to call Anderson as a rebuttal witness. The judge, by way of a rhetorical question, asked “[H]ad he [plaintiff] put in this testimony, he would be home free, wouldn’t he?” He added that he believed that plaintiff’s attorney
“* * * always recognized his problem of invitation to come into the back door, and he hoped he had enough without this. When he finds he does not have enough, he now says, T want a second bite at the apple.’ ”
The judge then permitted “the offer of proof to stand on the record,” and ruled that “in the exercise of my discretion, I cannot in good conscience permit a reopening,” and dismissed the jury.
On this appeal plaintiff urges two grounds for reversal: (1) the granting of defendants’ motion to dismiss the complaint at the close of plaintiff’s case; and (2) the denial of plaintiff’s motion to reopen.
It is fundamental that on a motion for involuntary-dismissal the court may not weigh the evidence but must accept as true all the evidence which supports the party against whom the motion is made, and give him the benefit of all legitimate inferences which may be drawn therefrom in his favor. Long v. Landy, 35 N. J. 44, 53-4 (1961) ; O’Donnell v. Asplundh Tree Expert Co., 13 N. J. 319, 328 (1953); Hardman v. Ford Motor Co., 10 N. J. Super. 215, 290 (App. Div. 1961), certif. denied 36 N. J. 299 (1962).
As already noted, the trial judge ruled, as a matter of law, that Handleman was a trespasser at the rear of the diner, and that defendants had breached no duty owed to him as a trespasser. Plaintiff claims there was sufficient evidence before the jury from which it could have found that he was an invitee when he entered the rear room. In reviewing the granting of the motion for dismissal, therefore, we must first consider Handleman’s status in relation to defendants at the time he was injured.
Plaintiff, in order to recover, had the burden of proving a breach of duty owed to him. The particular duty owed depended upon whether his status was that of an invitee, licensee, or trespasser. The basic rules pertaining to the distinctions between trespassers, licensees and invitees are settled. Lordi v. Spiotta, 133 N. J. L. 581, 584 (Sup. Ct. 1946). A trespasser is one “who enters or remains upon land in the possession of another without a privilege to do so created by the possessor’s consent or otherwise.” Restatement, Torts (1934), § 329, p. 891; Prosser, Torts (2d ed. 1955), § 13, p. 54; 1 Harper & James, Torts (1956), § 1.4, pp. 11-12. Our authorities describe the trespasser as one who is “neither invited, suffered, nor privileged” to be on another’s property. State v. Wouters, 71 N. J. Super. 479, 486 (App. Div. 1962); Williams v. Morristown Memorial Hospital, 59 N. J. Super. 384, 389 (App. Div. 1960). A licensee is a person “who is privileged to enter or remain upon land bjr virtue of the possessor’s consent.” Restatement, Torts, supra, § 330, p. 893; Prosser, supra, § 77, p. 445; 2 Harper & James, supra, § 27.1, p. 1431. The licensee is not invited but his presence is suffered. Snyder v. I. Jay Realty Co., 30 N. J. 303, 312 (1959); Williams v. Morristown Memorial Hospital, supra, 59 N. J. Super., at p. 389. Finally, the invitee is he “who is invited or permitted to enter or remain on land for a purpose of the occupier.” Prosser, supra, § 78, p. 452; 2 Harper & James, supra, § 27.1, p. 1431. He enters “by invitation, express or implied.” Snyder v. I. Jay Realty Co., supra, 30 N. J., at p. 312; Lordi v. Spiotta, supra, 133 N. J. L., at p. 584.
Aside from the proffered testimony of Anderson, the investigator, plaintiff’s ease was devoid of any evidence or inference of an express or implied invitation from defendants to Handleman or to any Senak salesman to enter the rear room of the diner. Evaluating the evidence in the posture in which it stood at the conclusion of plaintiff’s case, Handleman did not qualify as an invitee at the moment of his fall.
We are not called upon to determine plaintiff’s precise status when he first entered the diner and spoke to Lawson. Probably, as the trial judge suggested, he was at that moment by implication an invitee. At the least, he was at that time defendants’ licensee. Since Cox and Tillotsen knew that their employees had dealings with Senak personnel in purchasing merchandise and did not direct them to discontinue this association, it is clear that plaintiff’s presence in the front of the diner was tolerated. One who enters the business premises of another to negotiate a private sale with someone other than the owner, even without the owner’s knowledge and without his express or implied invitation, has been characterized as a licensee. Willins v. Ludwig, 136 N. J. L. 208, 211 (E. & A. 1947); Annotation, 78 A. L. R. 2d § 4, p. 119.
The jury conld have inferred that Lawson directed plaintiff to bring the silverware into the kitchen through the rear door. The dining area was fully occupied at the time, and it was to be expected that defendants’ employees would conduct their personal purchases at the rear platform or in the kitchen, where it was less crowded. Other factors that lead us to conclude that a jury question was presented as to plaintiff’s status as a licensee or gratuitous licensee are that: there was an absence of any sign at the rear door prohibiting admittance by anyone; Cox and Tillotsen knew of their employees’ practice of buying from salesmen who visited the diner; all deliveries of merchandise for the diner were made through the rear entrance. These factors indicate that it was the ordinary, not extraordinary, practice to receive business visitors in the rear of the diner.
The immediate question thus becomes whether or not a jury could find that Handleman surrendered his status as a gratuitous licensee when he entered the rear door. In Snyder v. I. Jay Realty Co., supra, 30 N. J., at p. 312, the court stated:
“We believe that visiting an employee at his place of employment, where a hazardous activity is not being conducted in the area visited, does not go beyond generally accepted modes of behavior or custom, and in the absence of any prior expression of disapproval by the employer the visitor is not a trespasser but one whose presence is suffered and therefore is lawfully upon the premises.”
In this regard the social guest of an employee, while not an invitee, is, nevertheless, a gratuitous licensee. Restatement, Torts, supra, §§ 330, 331; Prosser, supra, § 77, p. 446.
We believe that the jnry could have found at the conclusion of plaintiff’s case that Handleman’s presence in the rear of the diner did not exceed “generally accepted modes of behavior” under all the circumstances here present. The factors of most particular significance were those of the unavailability of space in the front of the diner, the invitation by Lawson, the nature of the transaction between plaintiff and defendants’ employees, and the time at which the call was made. There was a question of fact to be determined by a jury as to whether or not Cox and Tillotsen actually did prohibit salesmen engaged in private undertakings with their employees from entering the rear room. So viewed, the jury could have found plaintiff occupied the status of licensee at the time he was injured.
The duty owed by the occupier of premises to a licensee is to abstain from acts willfully injurious. But if “there is a known dangerous condition on the premises which the occupier could reasonably anticipate that his licensee would not observe and avoid, he must either give warning or make the condition reasonably safe.” Snyder v. I. Jay Realty Co., supra, 30 N. J., at pp. 316-7; Berger v. Shapiro, 30 N. J. 89, 98 (1959); Williams v. Morristown Memorial Hospital, supra, 59 N. J. Super., at p. 389; Mistretta v. Alessi, 45 N. J. Super. 176, 180 (App. Div. 1957); Prosser, supra, § 77, pp. 448-50; Restatement, Torts, supra, §§ 340-2, pp. 927-31; 2 Harper & James, supra, § 27.9, pp. 1471-5; Annotation, 55 A. L. R. 2d 525 (1957). The foregoing principle has been looked upon as an extension of the rule, Mistretta v. Alessi, supra, 45 N. J. Super., at p. 179, Lordi v. Spiotta, supra, 133 N. J. L., at pp. 584-586, that the occupier of land must not set a trap for a licensee. The licensee, on the other hand, is under an obligation to make reasonable use of his faculties to observe any dangerous condition. Berger v. Shapiro, supra, 30 N. J., at pp. 98-9.
Savage acknowledged knowing the carton was on the platform, thus blocking a view of the cellar stairs by anyone entering through the rear door, at the time he saw plaintiff approach that door. However, neither Cox nor Tillotsen was on the premises at the time or had knowledge of this dangerous condition. On the basis of the evidence presented, neither Savage nor Lawson was performing any service for defendants in relation to plaintiff when Handle-man was told to enter with the silverware at the rear entrance. This is similar to the facts noted in the Snyder case where the court, after determining that the defendants-lessees owed no duty to plaintiff because he was not on the leased portion of the premises, said:
“Moreover, the partners of the tenant were not actually present and had no personal knowledge of plaintiff’s intended visit. The plaintiff was not a customer or a business invitee of theirs and there was no evidence that at the time of the occurrence either Selleck or Batten was performing any service for the tenant in relation to the plaintiff. See Restatement, Agency, § 242; * * 30 N. J., at pp. 317-8.
Therefore, even if the jury would have found plaintiff to be a licensee at the time he sustained his injuries, the dangerous condition (the obscuring of the stairs by the carton) was not actually known by defendants or by an employee performing a service for them in relation to plaintiff.
The only other basis upon which defendants could be held liable to plaintiff as a licensee would be if the location of the stairs and the length of the platform could be considered a dangerous condition which defendants could reasonably have expected that plaintiff would not observe and avoid. Although there is considerable doubt that the platform length did not comply with the requirements of the building code (and if it did not, it was only by a few inches), we find the evidence relating to the physical aspect of the platform as providing no real basis for considering the platform the proximate cause of the accident. It was the carton, in part concealing the presence of the steps, which may have proximately been responsible for the accident.
It appears, therefore, that the court was correct in granting defendants’ motion. The basis, however, should have been that defendants did not breach any duty owed to plaintiff as a licensee, and not that he was a trespasser.
The second ground urged for reversal concerns the denial of plaintiff’s motion to reopen his case to introduce further proof as to his status while in the rear of the diner. That proof would have been Anderson’s testimony as to his conversation with Cox.
Analyzing the offer of proof, we find that it points towards a conclusion that Handleman was an implied invitee while in the rear of the diner. The test of an implied invitation is whether “the entry upon the premises was for a purpose directly or indirectly connected with the business carried on there by the occupier, or was of interest or advantage to the occupier, or was in pursuance of an interest or advantage which is common or mutual to the occupier and to him who enters.” (Emphasis added.) Barnard v. Trenton-New Brunswick Theatres Co., 32 N. J. Super. 551, 555 (App. Div. 1954); Phillips v. Library Co., 55 N. J. L. 307, 310-11 (E. & A. 1893).
We have focused our attention upon that part of the above quoted test of implied invitation which relates to entry upon the premises having been “of interest or advantage to the occupier”—here the defendants. The jury could have found, had Anderson testified, that Handleman’s visit to the rear entrance was in defendants’ interest and advantage, and therefore there was an implied invitation. Handleman went there at Lawson’s direction, only for sufficient time to exhibit and sell the silverware, and thus avoided interference with the lunchtime rush of business at the diner counter. His going to the rear entrance helped, in a measure, to relieve congestion in the small diner. By bringing merchandise to defendants’ employees, he provided a convenience which relieved them of having to shop elsewhere for the goods on their own time. The visits of these Senak salesmen increased the possibility that they would become customers of the diner. Moreover, there was the further possibility that defendants might have chosen to purchase goods from Senak for use in the diner as a result of the sales to Cox and defendants’ employees. All these factors indicate there was a benefit to defendants’ business by having Senak salesmen exhibit and sell their goods at the rear of the premises. Furthermore, if Anderson had been allowed to testify, the jury could have found that Cox had himself purchased merchandise from Senak’s salesmen, knew that his employees made similar purchases, and “if the place was busy, they would be asked to come around to the back entrance,” although “not a public entrance * * * but exceptions were made for these salesmen.”
Having established that a jury question was raised as to whether plaintiff was an implied invitee on the basis of the offer of proof, it is quite clear that a further jury question was presented as to whether defendants had breached a duty owed to Handleman as an invitee. The duty owed in these circumstances is to exercise reasonable care for the invitee’s safety, to see that he is not injured by any negligent activity, and to warn not only of dangerous conditions actually known to defendants or either of them, but also of dangerous conditions or possible defects which they, by the exercise of reasonable care, could discover. Gudneslad v. Seaboard Coal Dock Co., 15 N. J. 310, 319 (1954) ; Barnard v. Trenton-New Brunswick Theatres Co., supra, 33 N. J. Super., at p. 557; Restatement, Torts, § 343; 3 Harper & James, supra, § 37.13, p. 1487; Prosser, supra, § 78, p. 459.
The performance of this duty is also chargeable to defendants’ employees. Terranella v. Union Building and Construction Co., 3 N. J. 443, 448 (1950); Barnard v. Trenton-New Brunswick Theatres Co., supra, 33 N. J. Super., at p. 557. Since Savage admitted seeing the carton within a period of time before the fall which the jury might have considered adequate for its removal, and since the jury might also have found that allowing the carton to remain on the platform did not comport with the exercise of reasonable care for the safety of an implied invitee, the circle becomes complete and jury questions were presented on all the vital elements on the issue of negligence to an implied invitee. We again note that it was the presence of the carton on the platform, not the construction of the platform, which the jury could have considered as evidence of negligence in creating a condition of potential danger to one in plaintiff’s position. Therefore, had the offer of proof been accepted, the motion to dismiss would have had to be denied.
The final step, then, is to evaluate the propriety of the trial judge’s action. Defendants’ motion for dismissal, as might be expected, dealt with various aspects of plaintiff’s proofs and the application of appropriate authorities, particularly Snyder v. I. Jay Realty Co., supra. As we read the colloquy, we perceive its main thrust to have been whether plaintiff was a licensee or an invitee. To the obvious surprise of plaintiff’s attorney, the trial judge, at the very close of the colloquy, took the view that plaintiff occupied no higher status than that of a trespasser. Although counsel represented to us that the argument on defendants’ motion to dismiss consumed some two hours, examination of the typewritten appendix revealed that approximately half the time was devoted to the admission into evidence of exhibits, depositions, and certain replies to demands for admissions. In any event, as already noted, it is our opinion that the reopening was a matter which could easily have been accomplished under the circumstances. The jury had not been discharged. The Anderson report had been marked for identification and Mr. Anderson was in court prepared to testify.
It is true that hindsight indicated to plaintiff’s attorney that it would have been wiser had he elicited the proofs belatedly offered, when he had Anderson on the stand during the presentation of plaintiff’s case. But his trial tactic is understandable. He thought it better to have Anderson testify in rebuttal, should Cox take the stand and deny there was any sort of invitation held out to Senak salesmen to use the rear entrance. An appellate court is ordinarily reluctant to interfere with a trial judge’s exercise of discretion, but a case may be reopened to receive omitted evidence because of a mistake as to the necessity for offering particular evidence in order to prevent a nonsuit. Gerson v. Metropolitan Life Ins. Co., 117 N. J. L. 190, 192 (E. & A. 1936). However, we are convinced that judicial discretion was not properly exercised in the circumstances of this case, and that substantial justice demands that there be a new trial. Magich v. John Hancock Mutual Ins. Co., 32 N. J. Super. 33, 39 (App. Div. 1951); Gibilterra v. Rosemawr Homes, 32 N. J. Super. 315, 322 (App. Div. 1954), affirmed 19 N. J. 166 (1955). The issue in dispute seriously affected the substantial rights of the plaintiff and he should have been given the opportunity to supplement his proofs. Carlo v.. Okonite-Callender Cable Co., 2 N. J. Super. 122, 125 (App. Div.), affirmed 3 N. J. 253 (1949) ; Gerson v. Metropolitan Life Ins. Co., supra; Juliano v. Abeles, 12 N. J. Misc. 667, 669, 174 A. 341 (Sup. Ct. 1934). As in Magich, we hold, under R. R. 1:5-3 (b) and 1:27A, that denial of plaintiff’s request was an abuse of discretion and reversible error.
We are aware that plaintiff is now seeking the protection of a liberal interpretation of the rules of procedure when, at the trial, believing that his proof was sufficient to establish a prima facie case for jury consideration, he withheld his crucial item of evidence until an opportune time presented itself during Cox’s cross-examination. We do not approve of the piecemeal presentation of testimony where the elements of the cause of action are so closely contested. However, since the advantage of surprise has been lost and it is probable that Anderson’s testimony will entitle plaintiff to have the jury pass on the merits of his claim, we therefore reverse the denial of plaintiff’s motion to reopen.
While Blum v. Parsons Manufacturing Co., 95 N. J. L. 471 (E. & A. 1921) and Smith v. Smith, 17 N. J. Super. 128 (App. Div. 1951), certif. denied 9 N. J. 178 (1952), might appear to support a contrary conclusion, we find both decisions clearly distinguishable.
In Blum defense counsel did not make his motion to reopen until he had partly summed up his case to the jury. Actually he was only seeking to introduce the record of a judgment in a previous action between the parties. That judgment had no application to the controversy being tried. The motion was denied and the jury was permitted to deliberate and return a verdict. By way of dictum, the Court of Errors and Appeals added that “if it [the record of the judgment] was material it was not an abuse of discretion to refuse to open the ease and admit evidence omitted which was within the knowledge of the party before the close of the case.” 95 N. J. L., at p. 473. Clearly, the disposition of the motion to reopen in Blum was not especially vital to the merits of the case. Nor was the denial of the motion determinative, as here, of the all important issue of whether plaintiff was to have a jury decide if he was entitled to a judgment.
Admittedly, the facts of Smith bear a closer relation to the cause under review. There it was held that the denial of plaintiff’s motion to introduce additional evidence after the action had been dismissed was clearly within the bounds of sound discretion. In that action, however, after plaintiff had voluntarily rested his case the judge announced, “I am frank to admit that I have got to be shown what I don’t see now, the evidence upon which I am justified in putting the defense on their proof.” 17 N. J. Super., at p. 134.
The judge then postponed the case for two weeks to allow counsel for plaintiff to submit a brief in support of a finding that the defendants should present their defense. In granting this postponement, the judge specifically stated that he could not fathom why plaintiff and other key witnesses had not been called upon to testify. They had been in the court room throughout the trial but were not called upon “to give any testimony regarding these transactions about which certainly they know more than anybody else.” Id., at p. 135.
After the brief was filed the judge dismissed the action. Plaintiff’s counsel then moved to reopen the case, stating that “through mistake and inadvertence I omitted to call to the witness stand before resting plaintiff’s case, * * * the plaintiff and other witnesses.” The motion was denied.
The Smith decision may be distinguished on the following grounds. Counsel for plaintiff in that action was unmistakably alerted to the fact that he stood in danger of having his action dismissed. Handleman’s counsel, however, was not alerted until late in the argument of the motion for dismissal that his client’s status, in the eyes of the trial judge, was that of a trespasser. He did not have the opportunity to consider and reflect, as did counsel in Smith, nor was he unequivocally forewarned by the judge of the probability of a dismissal. We cannot find a real parallel between the unusual circumstances of Smith and the present appeal. Cf., however, Pirozzi v. Acme Holding Co., 5 N. J. 178, 184-5 (1950).
Reversed and remanded for a new trial.