Majority
p. 171(121 App. Div. 424.) ANDERSON v. ROSENBERG. (Supreme Court, Appellate Division, Second Department. October 11, 1907.) Argued before JENKS, HOOKER, GAYNOR, RICH, and MILLER, JJ.
Headnote
Nonsuit—Grounds—Premature Action.Where a complaint alleged a promise to pay plaintiff an amount to be paid by a trust company for assessments as soon as payment was made by the company, and action was brought December 4th, whereas payment was not made by the company until December 23d following, the action was prematurely brought, and a nonsuit was properly granted.
[Ed. Note.—For eases in point, see Cent. Dig. vol. 17, Dismissal and Non-suit, § 108.]
Appeal from Special Term, Kings County.
Action by Rachel Anderson against Charles Rosenberg. From a judgment for defendant, plaintiff appeals. Modified and affirmed.
Stanislaus N. Tuckman, for appellant.
Edwin L. Kalish, for 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. All concur.