
    William F. Stokes, Resp’t, v. Atlantic Avenue Railroad Company of Brooklyn, App’lt
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 26, 1895.)
    
    Tbial—Dismissal on the mebits.
    It is erroneous for the court to dismiss, upon the case at the close of the testimony upon the part of the plaintiff, or for the clerk to insert in the judgment that the dismissal was upon the merits, where no question was submitted to the jury for their finding, nor any direction of the verdict made by the court.
    Appeal from an order, denying a motion to amend the judgment by inserting, after the word “ dismissed,” the words “ upon the merits of the action.”
    
      Tracy, Boardman & Platt, for app’lt; Cf. Washbourne Smith, for resp’t.
   Dykman, J.

This is an appeal from an order made at special term denying a by to in this action by inserting after the word “ dismissed ” the words “ upon the merits of the action.” The suit was brought for the recovery of damages for personal injuries to the plaintiff. Upon the trial at circuit before a jury, upon the close of the testimony upon the part of the plaintiff, the complaint was dismissed, and judgment of dismissal was entered. No question was submitted to the jury for their findings, nor was the verdict directed by the court.

In such cases it is not only irregular, but would be erroneous, for the court to dismiss the case upon the merits, or for a clerk to insert in the judgment that the dismissal was upon the merits. Martin v. Cook, 37 St. Rep. 733. All authorities are harmonious upon this subject. The case cited was an action brought by a servant against his master to recover damages for personal injuries. After the plaintiff had rested, on motion of the 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 the merits. The dismissal of the complaint in this case was equivalent to a nonsuit, and should be treated in the same way. If the counsel for the defendant upon the trial had procured a dismissal, or procured the dismissal upon the merits, and the judgment had been so entered, it would have been erroneous, as we have already seen, and would have been corected upon motion.

The order should be affirmed, with $10 costs and disbursements.  