Eidlin v. State Bank ( 1907 )

PER CURIAM.

The proof on the part of the plaintiff was not sufficient to entitle him to a judgment. A motion to dismiss the complaint, made by the defendant’s counsel upon substantially that ground, was denied. The defendant thereupon rested, and the court gave a judgment for the defendant upon the merits. This was error. The defendant was entitled only to a judgment dismissing the complaint for failure of proof. Bowen v. Farley, 113 App. Div. 767, 99 N. Y. Supp. 205; Ætna Life Ins. Co. v. Deparquet Co., 53 Misc. Rep. 581, 103 N. Y. Supp. 800.

Judgment modified, by directing judgment for a dismissal of the complaint without prejudice to a new action, and, as modified, affirmed, without costs of this appeal to either party.