Marcus v. Joline — 119 N.Y.S. 172

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p. 172

MARCUS v. JOLINE et al.

(Supreme Court, Appellate Term.

November 12, 1909.)

Headnote

Appeal and Error (§ 1152*)—Determination oe Cause—Judqment—Modification. •

Where, at the close of plaintiff’s case, defendant made “the usual motion,” whereupon the court erroneously dismissed the complaint on the merits, the judgment would be modified on appeal, so as to constitute a dismissal without prejudice only.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4488; Dec. Dig. § 1152.*]

. *For other oases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes-

Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by Morris Marcus against Adrian H. Joline and another, as receivers of the Metropolitan Street Railway Company. Judgment for defendants, and plaintiff appeals.

Modified and affirmed.

Argued before GILDERSLEEVE, P. J., and SEABURY and LEHMAN, JJ.

Anthony J. Ernest, for appellant.

Fannie Horovitz, for respondents.

Plaintiff brought an action, based upon the alleged negligence of the defendant. At the close of the plaintiff’s case, the defendant offered no evidence, but made this motion: “I make the usual motion, if the court pleases.” Thereupon the court said: “Judgment for the defendant. The complaint is dismissed upon the

p. 173

merits.” Upon this appeal, both sides concede that a dismissal upon the merits was error.

Judgment modified, by inserting a direction that the complaint be dismissed without prejudice to a new action, and, as modified, affirmed, with $10 costs to the appellant.