Peggo v. Dinan

GOODRICH, P. J.

The plaintiff appeals from an order of the special term denying his motion to amend the judgment in question so as to make it read that “a judgment of nonsuit be directed to be entered herein, instead of that the said complaint be dismissed on the merits.” The motion, at the close of the plaintiff’s case, to nonsuit, was renewed at the close of all the evidence, and the motion was granted. It was not stated to be “on the merits,” but the judgment contains such a phrase. I think that the court, on a jury trial, has no power, at the close of the whole evidence, to dismiss “on the merits,” as such a dismissal substitutes the court for the jury in passing upon a question of fact, and thus impairs the right of trial by jury. See Mannion v. Railroad Co. (Sup.) 13 N. Y. Supp. 759. It was held in Wheeler v. Ruckman, 51 N. Y. 391, that where, upon the trial of a legal action, at the close of the testimony upon both sides, the complaint is dismissed, it is no bar to another action for the same cause. But if the court has power to dismiss on the merits, and does so, within the principle of res judicata the judgment would be a bar to another action. The court may direct a verdict for the defendant only where there is no question of fact, in which case the correctness of the direction is a question of law subject to review, with the important advantage to the plaintiff of the most favorable view of the evidence. The court may grant a nonsuit or dismissal because the plaintiff has failed to establish his case, and this leaves the plaintiff to a review on appeal where the question is one of law, or to the bringing of a new action. Besides, as the defendant’s motion at the close of the plaintiff’s case was for a nonsuit, and the motion at the close of the whole testimony was renewed, “to dismiss on the grounds stated upon the motion made to dismiss at the close of the plaintiff’s case,” and the motion was granted, it does not appear that the court granted a motion to dismiss the complaint on the merits. It was therefore not within the power of the clerk to enter a judgment dismissing the complaint on the merits; as that was not the decision of the court at the trial.. A, motion to amend the judgment by strilcingout the words “on the merits” is the proper remedy, and the refusal so to order is subject to review on appeal. The order appealed from.should, be reversed.

Order reversed,.with-$io costs.and disbursements, and motion to amend'granted, with $io costs.