
    Jacob Nudelman, an Infant, by Hyman Nudelman, his Guardian ad litem, Appellant, v. Borden’s Condensed Milk Company, Respondent.
    (Supreme Court, Appellate Term, First Department,
    June, 1912.)
    Trial — dismissal of complaint — when not “ on the merits.”
    Where a judgment recites that a jury having been impaneled and the attorney for the plaintiff having stated that he had no witnesses in court and had not subpoenaed any witness on behalf of plaintiff and the attorney for defendant having moved for a dismissal of plaintiff’s complaint defendant is awarded judgment against the plaintiff on the merits, the dismissal is not upon the merits notwithstanding such recital.
    Where defendant’s driver, who had asked plaintiff to watch his horse while he delivered goods and had promised to give him a ride in return, told him to get on the steps, plaintiff was a licensee and was entitled to recover for injuries in being jolted off by the negligence of the driver.
    Appeal by plaintiff from a judgment in favor of defendant dismissing the complaint at the close of plaintiff’s case, after trial by a judge without a jury in the Municipal Court of the city of Mew York, borough of Manhattan, second district.
    
      Bershad & Gossett, for appellant.
    Thomas M. Bowlette, for respondent.
   Bijub, J.

The facts in this case are simple. Defendant’s driver asked plaintiff to watch his horse while he delivered some goods, and promised to give him a ride in return therefor. When he returned to his wagon, he told the boy to step up on the step and then drove rapidly over the stones. The boy called to him that he'was in danger, but the driver, without slacking, told the boy to' jump off, which the boy did not do but was finally jolted off and injured.

The dismissal of the complaint was based by the learned court below expressly on two considerations:

1. That a judgment entered in the Federal Court between the same parties was res judicata in favor of the defendant. That judgment, so far as it is material, recites: “A jury having been impaneled and the attorney for the plaintilf having thereafter stated that he had no witnesses in cowd, and that he had not subpoenaed any ivitnesses on behalf of the plaintiff, and the attorney for the defendant, having moved for a dismissal of the plaintiff’s complaint * * * defendant is awarded judgment against the plaintiff upon the merits.” [Notwithstanding the recital that said dismissal was upon the merits, it is evident that it was not. See Clark v. Scovill, 198 N. Y. 279 ; Kaplan v. Friedman Const. Co., 148 App. Div. 14; Strodl v. Farrish-Stafford Co., 67 Misc. Rep. 402; McDonald v. Hygienic Ice & Refrigerating Co., 148 App. Div. 539.

2. That this case is controlled by Gunderson v. Eastern Brewing Co., 71 Misc. Rep. 519. In that case, however, it was pointed out that the jury had, under the charge, determined that the boy was on the wagon “ for the purpose of assisting the driver in his work * * *. This made him an emergency servant, and, therefore, a fellow-servant of the driver for whose negligence under the circumstances the defendant does not have to respond.” In this case at bar, whatever service" the plaintiff had been called upon to render was completed before he went upon the wagon, and he was not, therefore, at that time a fellow-servant, but a licensee, and entitled to recover for injuries caused by the negligence of defendant’s driver. See Grimshaw v. L. S. & M. S. R. Co., 205 N. Y. 371.

Judgment reversed and new trial granted, with costs to appellant to abide the event.

Seabury and Lehman, JJ., concur.

Judgment reversed.  