Majority
p. 759Mannion v. Broadway & Seventh Ave. R. Co. (Supreme Court, Special Term, New York, County. November, 1889.)
Headnote
Judgment—Correction—Nonsuit—Recital op Dismissal on Merits.There is no trial on the merits in an action tried before a jury unless the questions are submitted to the jury for their findings of fact, or a verdict is directed by the court for either party; and therefore, where a nonsuit for failure of proof is granted at the close of plaintiff’s case, a recital in the judgment of a dismissal on the merits is erroneous, and will be corrected on motion.
Action by Mannion against the Broadway & Seventh-Avenue Railroad Company for personal injuries. On the the trial before a jury, the court granted a nonsuit at close of plaintiff’s case for failure to prove negligence by defendant. Judgment was thereafter entered by defendant, with a recital that the case had been dismissed “upon the merits.” Plaintiff now moves to strike these words from the judgment, and defendant moves that they be inserted in the clerk’s minutes of the trial.
H. H. Leavitt, for plaintiff. Joseph Kunsman, for defendant.
Upon a trial at circuit with a jury there is no trial upon the merits unless the questions are submitted to the jury for their findings of fact, or a verdict directed by the court for either party. In this case there was no submission to the jury of any questions of fact or direction of a verdict by the court, but merely a nonsuit for failure of proof at the close of plaintiff’s case. The recital in the judgment of a dismissal upon the merits is therefore erroneous, and the judgment in that respect should be corrected, and the motion to correct the clerk’s minutes by inserting “upon the merits” should be denied.