Regulus Cigar Co. v. Flannery , 105 N.Y.S. 95 ( 1907 )

PER CURIAM.

An examination of the record shows that the plaintiff failed in its proof, and for that reason alone the defendant’s motion to dismiss the complaint should have been granted. The learned trial justice, however, gave a judgment in favor of the defendant.

The judgment should be modified, by directing that the action be dismissed, with costs, without prejudice to a new action, and, as modified, affirmed, without costs of this appeal.