Soltz v. Newmark ( 1903 )

PER CURIAM.

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.