Peters v. Petersen

Headnote

Appeal — practice — dismissal of complaint on merits — when modification by Appellate Division so as to dismiss complaint without prejudice, proper.

Peters v. Petersen, 206 App. Div. 719 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 25, 1923, modifying and affirming as modified a judgment in favor of defendant entered upon a .dismissal of the complaint by the court on trial at Special Term. The action was in equity for the rescission of a contract. The judgment of the trial court dismissed the complaint upon the merits. The Appellate Division modified the judgment of the trial court so as to dismiss ■

the complaint without prejudice instead of upon the merits. The question was whether after submitting findings of fact and conclusions of law to the trial .court and excepting to the findings and conclusions made and failing to move for a correction of the judgment dismissing upon the merits so as to have stricken out the words “ upon the merits,” a plaintiff may raise on appeal the objection that the dismissal should have been without prejudice.