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 upon 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 “ upon 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 “ upon the merits,” as such a dismissal substitutes the court for the jury in passing [435] upon a question of fact and thus impairs the right of trial by jury. (See Mannion v. Broadway, etc., R. R. Co., 18 N. Y. Civ. Proc. Rep. 40.) 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, upon the grounds stated upon the motion to dismiss made at the close of the plaintiff’s case,” and the motion was granted, it does not appear that the court granted a 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 striking out the words “ upon 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. Concurring memorandum by Hirschberg, J., with whom Bartlett, J., concurred; Jerks, J., read for affirmance, with whom Woodward, J., concurred.