Stokes v. Atlantic Ave. Railroad — 34 N.Y.S. 1051

Majority

p. 1051

STOKES v. ATLANTIC AVE. R. CO. OF BROOKLYN.

(Supreme Court, General Term, Second Department.

July 26, 1895.)

Headnote

Practice in Civil Cases—Dismissal on Merits.

A complaint cannot be dismissed on merits at the close of plaintiff’s case where no question was submitted to the jury for their findings nor any direction of the verdict by the court.

Appeal from special term, Kings county.

Action by William F. Stokes against tire Atlantic Avenue Railroad Company of Brooklyn. From an order denying a motion to amend the judgment by inserting after the word “dismissed” the words “upon the merits of the action,” defendant appeals.

Affirmed.

Argued before PRATT and DYKMAN, JJ.

Tracy, Boardman & Platt, for appellant.

G-. Washbourne Smith, for respondent.

This is an appeal from an order made at special term denying a motion by the defendant to amend the judgment in this action by inserting after the word “dismissed” the words “upon the merits of the action.” The suit was brought for the recovery of damages for personal injuries to the plaintiff. Upon the trial at circuit before a jury, upon the close of the testimony upon the part of the plaintiff, the complaint was dismissed, and judgment of dismissal was entered. No question was submitted to the jury for their findings, nor was the verdict directed by the court.

In such cases it is not only irregular, but would be erroneous, for the court to dismiss the case upon the merits, or for a clerk to insert in the judgment that the dismissal was upon the merits. Martin v. Cook (Sup.) 14 N. Y. Supp. 329 . All authorities are harmonious upon this subject. The case last cited was an action brought by a servant against his master to recover damages for personal injuries. After the plaintiff had rested, on motion of the defendant’s counsel the court dismissed the complaint upon the merits. On the appeal from that order the words “upon the merits” were'stricken out, and the court held that a dismissal in such a case was not upon the merits. The dismissal of the complaint in this case was equivalent to a nonsuit, and should be treated in the same way. If the counsel for the defendant upon the trial had procured a dismissal, or procured the dismissal upon the merits, and the judgment had been so entered, it would have been erroneous, as we have already seen, and would have been corrected upon motion.

The order should be affirmed, with $10 costs and disbursements.