
    BENEDICT v. HOFFMAN.
    (Supreme Court, Appellate Term.
    November 14, 1906.)
    Landlord and Tenant—Dispossess Proceedings—Appeal—Disposition of Cause—Modification of Judgment.
    On appeal in proceedings to dispossess a tenant from month to month after notice to quit, where the notice served does not appear in the record, and where the testimony for plaintiff is contradictory, he moved to discontinue the action, when defendant moved for a directed verdict, a judgment for defendant on a directed verdict will be modified by directing a judgment of dismissal without prejudice.
    Appeal from Municipal Court, Borough of Manhattan, Ninth District.
    Proceedings by Julian Benedict to dispossess Rose Hoffman. Erom a final order in favor of the tenant, the landlord appeals. Modified.
    Argued before GILDERSLEEVE, DUGRO, and DOWLING, JJ.
    Robert L. Stanton, for appellant.
    Rudolph Marks, for respondent.
   GILDERSLEEVE, J.

The petitioner brought this proceeding to dispossess the tenant on the ground that she was a tenant from month to month and held over after a five days’ notice to quit and surrender said premises had been served upon her. At the close of the plaintiff’s testimony a motion to dismiss the proceedings and also for a direction of a verdict was made by the defendant, and the court thereupon directed a verdict for the defendant.

It appears from the testimony that some kind of a notice was served upon the defendant; and, although the record states that such notice was admitted in evidence, it is not attached to the record. The testimony given on the part of the plaintiff was confused and contradictory, and the plaintiff’s counsel seems to have been in doubt about his right to a verdict upon the showing made by him, as, immediately after the court had instructed the jury to find for the tenant, he asked leave of the court to discontinue the action. Under the circumstances, we think justice will be done by modifying the judgment herein, by directing that a judgment of dismissal of the proceeding, with costs, without prejudice to a new proceeding, be entered in the lower court, and the judgment, as modified, be affirmed, without costs of this appeal in this court to either party. All concur.  