
    William F. Stokes, an Infant, by John H. Stokes, his Guardian ad Litem, Respondent, v. The Atlantic Avenue Railroad Company of Brooklyn, Appellant.
    
      Dismissal of a complaint — when not vpon the merits.
    
    Upon ttie trial of an action at Circuit before a jury, the complaint was dismissed at the close of the testimony on the part of the plaintiff, and a judgment of dismissal was entered. No question was submitted to the jury, nor was a verdict directed by the court. Subsequently the defendant made a motion to amend the judgment so that it should appear that the complaint was dismissed upon the merits.
    
      Held, that it would be not only irregular but erroneous for the court to dismiss such a case upon the merits, and that the motion to so amend the judgment was properly denied.
    Appeal by the defendant, The Atlantic Awenue Railroad Company of Brooklyn, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 19th day of March, 1895, denying tbe defendant’s motion to correct and amend tbe clerk’s minutes of tbe trial and tbqpostea or judgment herein.
    Tracy, Boardman & Platt, for tbe appellant.
    
      G. Washbourne Smith, for the respondent.
   Dykman, J.:

This is an appeal from an order made at Special Term denying a motion by tbe defendant to amend tbe judgment in tbis action by inserting after tbe word dismissed ” tbe words upon the merits of tbe action.” The suit was brought for, the recovery of damages for personal injuries to tbe plaintiff. Upon tbe trial at Circuit before a jury upon the close of tbe testimony upon tbe part of tbe plaintiff, tbe complaint was dismissed and judgment of dismissal was entered. No question was submitted to the jm*y nor was tbe verdict directed by tbe court.

In such cases it is not only irregular but would be erroneous for tbe court to dismiss tbe case upon tbe merits, or for a clerk to insert in tbe judgment that tbe dismissal was upon tbe merits. (Martin v. Cook, 37 N. Y. St. Repr. 733.)

All authorities are harmonious upon this subject. The case last cited was an action brought by a servant against bis master to recover damages for personal injuries. After tbe plaintiff bad rested, on motion of defendant’s counsel, the court dismissed the complaint upon the merits. On the appeal from that order the words “ upon the merits ” were stricken out and the court held that a dismissal in such a case was not upon tbe merits. The dismissal of tbe complaint in this case was equivalent to a nonsuit and should be treated in tbe same way.

If tbe counsel for tbe defendant, upon the trial, bad procured a dismissal upon tbe merits, and tbe judgment bad been so entered, it would have been erroneous, as we have already seen, and would have been corrected upon motion.

Tbe order should be affirmed, with ten dollars costs and disbursements.

Pratt, J., concurred; Brown, P. J., not sitting.

Order affirmed, with ten dollars costs and disbursements.  