Card v. Meincke — 24 N.Y.S. 375

Majority

p. 375

(70 Hun, 382.)

CARD v. MEINCKE et al.

(Supreme Court, General Term, First Department.

June 30, 1893.)

Headnote

JUDGMENT-ENTRY BY CLERK.

In an action tried by the court, where the latter in his decision filed directs judgment to be entered in favor of defendants and against plaintiff for costs, the clerk has no power to insert in the judgment that the case should be dismissed “on the merits.”

Appeal from special term, New York county.

Action by Frederick A. Card against Mary M. Meincke and another. Motion by defendants to dismiss after plaintiff rested, which was granted, and judgment ordered to be entered in favor of defendants and against plaintiff, with costs. The clerk entered judgment dismissing plaintiff’s complaint “on the merits.” Motion by plaintiff to correct the- judgment denied, and plaintiff appeals.

Reversed.

Argued before VAN BRUNT, F. J., and FOLLETT and FARRIER, JJ.

" L. Karge, for appellant.

Hinrichs & Rudolph, for respondents.

In an action tried before the court without a jury the clerk can only enter a judgment as directed by the court in the decision filed, or upon a subsequent approval by the judge who tried the cause of the particular judgment that is proposed to be entered. In the case at bar the decision filed contained no such explicit directions, and certainly did not state that any judgment should be entered dismissing the complaint in this action on the merits, whatever might have been the intention of the learned judge who tried the cause. We think, therefore, that the motion should have been granted, striking out from the judgment the words, “upon the merits.” The order appealed from should be reversed, and the motion granted, with $10 costs of appeal and disbursements, and $10 costs of motion and disbursements.