129 N.Y.S. 1038 | N.Y. App. Div. | 1911
This is an appeal by both parties from an order made upon plaintiff’s motion for an order correcting the judgment which was entered herein on December 17, 1907, by striking out the words “ on the merits ” wherever they occur.
The facts appear to be as follows: This is one of two actions commenced by plaintiff against defendants appellant and Joseph Ramsey, Jr., upon the same facts and for the same relief, but, as it is said, upon different theories as to plaintiff’s right to recover. This action is No. 1. It was begun in June,- 1905, action No. 2 having been begun in January, 1906. This action came on for trial before the court and a' jury in 1907, and at the close of the plaintiff’s case it was dismissed as to the appellants Gould and Guy,' and proceeded to a verdict as to the defendant Ramsey. The judgment which was entered dismissed the complaint as against Gould and Guy “upon the merits.’’ The plaintiff, although he appealed from this judgment in so far as it dismissed the complaint against Gould and Guy, did not prosecute his appeal, and it was dismissed. The Appellate Division reversed the judgment as' against Ramsey and ordered a new trial. ' (Jones v. Ramsey, No. 1, 127 App. Div. 704.) Action No- 2 had previously come on for trial before the court and a jury and resulted in a verdict against all the defendants, upon which a judgment was entered. From this judgment an appeal was taken to the Appel
After the time limited by the rules for the service of answering affidavits had expired, the defendants sought to appear generally in opposition to the motion, but the plaintiff refused to receive their affidavits and objected to their being allowed to appear and be heard upon the merits. The court declined to grant such an important motion upon default, when the defendants were striving to be heard upon it, and denied plaintiff’s motion, with leave tó. í’enew.' The plaintiff, instead of availing.
There has been no little uncertainty and confusion concerning the proper practice as to the dismissal of a complaint. Properly speaking, a judgment of dismissal should be entered only when it is intended to nonsuit the plaintiff, but it has frequently happened that judgments have been entered in the form of a dismissal on the merits, when, what was really intended was the rendition of a final judgment against the plaintiff. “Where a complaint is dismissed because of failure of proof, the dismissal is not upon the merits, because the merits are not involved, the complaint being dismissed because of want of merit in the proof. It is only where a prima facie 'case is made Out, and proof offered to rebut it, that the merits are involved.”. (Martin v. Cook, 14 N. Y. Supp. 329, 331; Koewing v. Thalmann, 139 App. Div. 893; Molloy v. Whitehall Portland Cement Co., 116 id. 839, 843.) If the direction for judgment was made because the plaintiff, had failed in his proof, it must, therefore, be construed as a dismissal of the complaint, and the words “on thq merits” had no proper place in the postea. And we are compelled to conclude that what the court intended was to dismiss • the complaint, because there was neither the direction of a verdict nor a finding by the court to sustain a judgment on the merits. “If there is no evidence to sustain an
Order in so far as appealed from by defendants affirmed, and in so far as appealed from by plaintiff reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Order to be settled on.notice.