Wolf v. Farkas , 39 N.Y.S.2d 359 ( 1943 )

Per Curiam.

The order is not appealable. (Civ. Prac. Act, § 583; Brauer v. Oceanic Steam Navigation Co., 77 App. Div. 407; Jackman v. Hasbrouck, 168 App. Div. 256; Fine v. Cummins, 260 App. Div. 569.) The correctness of a ruling granting or denying a nonsuit during trial may only be remedied by appeal from the judgment or upon a motion for a new trial.

It may be remarked that there is nothing in this record indicating that the trial court intended in granting a nonsuit as to the second cause of action that the dismissal was without prejudice. Where a trial judge in ruling upon a motion to dismiss intends to dismiss without prejudice, and through a defect in the record that fact is not shown, it seems but just that a motion may be made to correct the inadvertence so as to conform the record to the decision as intended by a statement in the record by the trial judge to that, effect. (Cabang v. United States Shipping Bd. Merchant Fleet Corp., 227 App. Div. 751.) Appeal dismissed.

All concur. Present — Hammer, Miller and McLaughlin, JJ.