Majority
p. 283SOLTZ v. NEWMARK et al. (Supreme Court, Appellate Term. June 22, 1903.) Argued before FREEDMAN, P. J„ and GILDERSLEEVE and MacLEAN, JJ.
Headnote
1. Trial—Failure of Proof—Dismissal.Where plaintiff’s complaint was dismissed at the close of his case for failure of proof, such dismissal should have been without prejudice, and not on the merits.
Appeal from City Court of New York.
Action by Barnet Soltz against Morris Newmark and others. From a judgment in favor of defendants, plaintiff appeals. Modified.
David W. Rockmore (Joseph Fischer, of counsel), for appellant.
Jacob R. Schiff, for respondents.
The complaint is based upon two accounts alleged to have been stated between one Barnett N. Rod and defendant firm, and the assignment of Rod’s claims to the plaintiff. The answer of the defendants, among other things, denies these, allegations. At the trial the plaintiff clearly failed to establish the statement of either of the accounts sued upon within the rules applicable to such a cause of action, and the complaint was properly dismissed at the close of his case. But the dismissal should not have been upon .the merits.
Judgment modified by striking out the words “upon the merits thereof,” and, as thus modified, affirmed, without costs to either party upon the appeal.