Anderson v. Rosenberg — 121 A.D. 424

Majority

p. 424

Rachel Anderson, Appellant, v. Charles Rosenberg, Respondent.

Second Department,

October 11, 1907.

Headnote

. Nonsuit— premature action — erroneous dismissal on merits.

An action for an alleged breach of a promise to pay over - moneys when received .. by the defendant from a trust company is premature if brought before the ■defendant received the moneys. -

But the complaint in such action should not he dismissed “ upon the merits,”.

p. 425

Appeal by the plaintiff, Rachel Anderson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 15th' day of January, 1907, upon a nonsuit granted by the court at the close of the plaintiff’s case on a trial at the Kings County Trial Term.

Stanislaus N. Tuckman, for the appellant.

Edwin L. Kalish, for the respondent.

The complaint alleged a promise of the defendant to pay to the plaintiff $1,000, or so much thereof as the trust company paid for assessments, as soon as the trust company made the payment. The action was commenced on the 4th day of December, 1905, by the service of the summons on the .defendant; the payment by the trust company of the assessments was not made until the 23d day of December, 1905. The nonsuit was, therefore, properly granted for the reason that the action was prematurely brought. The judgment, however, provides that the complaint should be dismissed “ upon the merits.” Because of. this error, the judgment must be modified by striking out the words “ upon the merits,”' and as thus modified affirmed, without costs.

Jenks, Gaynor, Rich and Miller, JJ., concurred.

Judgment modified by striking out the words “ upon the merits,” and as thus modified affirmed, without costs.