
    Michael Brook, Appellant v. Benjamin A. Levinson and Edgar C. Bessels, Respondents.
    (Supreme Court, Appellate Term, First Department,
    June, 1916.)
    Judgments — dismissing action upon merits — Municipal Court Code, § 125.
    Evidence — when incompetent — trade customs.
    Under section 125 of the Municipal Court Code which declares that a judgment dismissing an action may be either on the merits or without prejudice to a new action, a dismissal upon the merits is equivalent to a judgment for defendants on all the issues.
    A loose sheet from defendants’ order book purporting to show their account with plaintiff is incompetent in the absence of proof as to the manner in which the book was kept or that the book from which the leaf was taken accurately recorded all transactions in connection with defendants’ business covering the period in question.
    Evidence of defendants ’ usual custom of requiring a written confirmation of an order for goods is insufficient to establish a trade custom binding on plaintiff and not shown to be within his knowledge.
    
      Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fourth district, in favor of defendants, dismissing the complaint on the merits, with costs, after a trial by the court mthout a jury.
    Val. B. Baggott (Samuel Katz, of counsel), for appellant.
    Bassett, Thompson & Gilpatric (W. H. Gilpatric, of counsel), for respondents.
   Guy, J.

Plaintiff appeals from a judgment dismissing the complaint on the merits after the introduction of evidence by both plaintiff and defendant and the close of the case by both plaintiff and defendant. It is contended by the appellant that there being an issue of fact the court had no power to dismiss the complaint on the merits, but was required to render judgment in favor of either plaintiff. or defendant. Section 125 of the new Municipal Court Act provides: “A judgment dismissing the action may be rendered either on the merits or without prejudice to a new action, as the case requires.” A dismissal upon the merits is the equivalent of a judgment for defendant on all the issues presented to the court. See Deeley v. Heints, 169 N. Y. 129, 135; Bass v. Phoenix Ins. Co., 161 App. Div. 296; Niagara Fire Ins. Co. v. Campbell Stores, 101 id. 400.

The decision in Bowen v. Farley, 113 App. Div. 767, to which our attention was invited, was under the old Municipal Court Act and is entirely superseded by section 125 of the present act.

A more serious question is presented by the evidence admitted, over plaintiff’s objection and exception, in connection with a loose sheet from defendants’ order book, used in their business, written by themselves and never shown to the plaintiff. Defendants’ witness testified: This is the sheet in our book under which the orders and deliveries to M. Brook & Company are entered.” The question was then asked: li Q. Looking at that sheet, Mr. Bessels, can you state whether there is any order on your books from Brook & Company? ” This was objected to as incompetent, irrelevant and immaterial, calling, for a conclusion, and that the paper was a self-serving declaration. The objection was overruled and an exception taken. The witness then answered: “ There is not.” Defendants’ counsel then offered the sheet in evidence, and the court asked: “ Do I understand this is a loose leaf from your book? A. Yes. Q. Taken from your regular account with this plaintiff? A. Yes, sir.” The objection was then overruled, under plaintiff’s exception, and the sheet marked in evidence. No other foundation was laid for the admission of the sheet than the testimony that it was a loose leaf from defendants ’ regular account with the plaintiff. There was not even the customary proof as to the manner in which the book was kept or that all orders obtained were entered as of the date of the order, or that the book from which the leaf was taken accurately recorded all transactions in connection with defendants’ business covering the period in question. By admitting such evidence the court permitted defendants to make the mere omission of an act on their part corroborative evidence in contradiction of plaintiff’s proof of the giving of the order. It could not be contended seriously that plaintiff would be allowed to recover against defendants upon mere proof that upon a certain date plaintiff had entered in its books an order for merchandise to be obtained from defendants. The converse of the proposition must be equally true that defendants cannot disprove plaintiff’s evidence of the actual giving of an order for merchandise by mere proof that defendants made no entry thereof in their books. The admission of this evidence was highly prejudicial and renders a reversal necessary.

Again, over plaintiff’s objection and exception, defendants were allowed, under guise of proving an established custom in the silk trade requiring a written confirmation of an order before it is deemed to be binding, to introduce evidence as to their usual practice in that regard. Plaintiff’s counsel moved to strike out the evidence on this point as incompetent, irrelevant and immaterial, which motion was denied with an exception to plaintiff. Defendant failed, either by direct testimony of their own witnesses or on cross-examination of plaintiff’s witnesses, to prove such a custom of the silk trade in that regard as would be binding upon the defendants, and defendants’ usual practice, which they were allowed to prove, was not shown to be within the knowledge of the plaintiff. Levinson v. McKenna, 126 N. Y. Supp. 604; Hart v. Cart, 144 id. 44; Walls v. Bailey, 49 N. Y. 464; Goldsmith v. Newwitter, 10 Misc. Rep. 36. The admission of this evidence was error.

The judgment must be reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.

Blttjb and Philbiu, JJ., concur.

Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide event.  