
    PEGGO v. DINAN.
    (Supreme Court, Appellate Division, Second Department.
    May 29, 1902.)
    Obder op Nonsuit—Judgment on Merits—Amendment.
    Where, at the close of the plaintiff's case, a motion to nonsuit was made and denied, and at the close of all the evidence the motion was renewed and granted, the entry of a judgment dismissing the complaint “on the merits” was unauthorized, and the denial of plaintiff’s motion to amend the judgment by striking out such words was error.
    Jenks and Woodward, JJ., dissenting.
    Appeal from special term, Dutchess comity.
    Action by Salvatore Peggo against Thomas Dinan. From an order denying plaintiff’s motion to amend a judgment, he appeals.
    Reversed.
    Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.
    Jonathan Deyo, for appellant.
    Abram J. Rose, for respondent.
   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 on 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 “on 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 “on the merits,” as such a dismissal substitutes the court for the jury in passing upon a question of fact, and thus impairs the right of trial by jury. See Mannion v. Railroad Co. (Sup.) 13 N. Y. Supp. 759. 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 on the grounds stated upon the motion made to dismiss at the close of the plaintiff’s case,” and the motion was granted, it does not appear that the court granted 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 strilcingout the words “on 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.

Order reversed,.with-$io costs.and disbursements, and motion to amend'granted, with $io costs.

HIRSCHBERG, J.

I concur with GOODRICH, P. J. When a motion is distinctly and expressly made for a “nonsuit,” and such motion is granted,,the result is a nonsuit, and’ not a judgment upon the merits. The clerk had no lawful authority to enter the judgment which he did, nor could the individual justice who presided at the trial afterwards ratify the act at special term.

BARTLETT, J., concurs.

JENKS, J.

I dissent. This is an appeal from an order of the special term denying plaintiff’s motion to amend the judgment entered on December io, 1900, so-that it may read that “a judgment of non-suit be directed to be entered herein, instead of that the said complaint be dismissed on-the- merits.” The justice presiding at the special term whereat the motion came on > to. be heard sent the motion to the learned justice who had presided at the term where the action was tried. It appears from the record of the trial that at the close of plaintiff’s case the defendant moved for a nonsuit on the grounds “that no actionable negligence has been proven against the defendants,” and “that plaintiff- has not been shown to be free from contributory negligence.” The decision under objection was reserved until the close of The case-for the defendant. Thereupon the defendant put* in his case, and at the conclusion of the evidence the defendant renewed “the motion to dismiss upon the grounds stated upon the motion to dismiss made at the close of the plaintiff’s case.” Motion granted. This ruling was made under exception, and in the face of a request of the plaintiff for a submission to the jury. I think that the form in which the counsel expressed his motion did not preclude the court, in passing upon that motion, from a disposition of the case upon the- merits..

I naturally1 assume-that the learned trial justice, who also heard the motion «.at. special term, knew perfectly well what disposition he intended to make of the case upon the trial. The nature and character of .the judgment is-to-be determined by the disposition made by the trial court -uponi the- evidence, and “a decision disposing of the case on the merits is-properly rendered on a motion for a dismissal of the complaint/’ Deeley v. Heintz, 169 N. Y. 130, 134, 62 N. E. 158. I think that;: the learned trial justice had the power to dismiss the complainti upon the merits. Thus, in the case of McDonald v. Railway Co., 167 N.Y. 66, 60 N. E. 282, which is a cogent reassertion of the maxim, “Ad. questionem facti non respondent judices,” it is said: “If the evidénce is insufficient, or if that which has been introduced is conclusively answered, so that, as a matter of law, no question of credibility or issue of fact remains, then, the question being one of law, it is the duty of the court to determine it.” See, too, Laidlaw v. Sage, 158 N. Y. 73, 89, et seq., 52 N. E. 679, 44 L. R. A. 216. It is unimportant whether the clerk was authorized tó enter such a judgment upon the record, because it now appears that the judgment as it stands has had the subsequent approval of the court which made the decision (Card v. Meincke, 70 Hun, 382, 24 N. Y. Supp. 375), while I think that such approval was fairly within the inherent power of the court over its own judgments (see Petrie v. Trustees, 92 Hun, 81, 36 N. Y. Supp. 636, and authorities cited). I think that the question presented by this appeal is not whether the disposition made by the learned court at trial term was erroneous upon the facts and the law, but whether it had the right to make a decision of dismissal upon the merits. In Martin v. Cook (Sup.) 14 N. Y. Supp. 329, affirmed 142 N. Y. 654, 37 N. E. 569, the court (Van Brunt and Daniels, JJ.) say:

“Where a complaint is dismissed because of failure of proof, the dismissal is not upon the merits, because the merits are not involved, the complaint being dismissed because of the want of merit in the proof. It is only where a prima facie base is made out, and proof offered to rebut it, that the merits are involved.”

In the case at bar a prima facie case was made out, and proof was offered to rebut it.

WOODWARD, J., concurs.  