
    Samuel B. Bowen, Doing Business as S. Bowen’s Son, Appellant, v. Thomas M. Farley, Respondent.
    Second Department,
    June 8, 1906.
    Municipal Court of Mew York — practice — in what cases justice may dismiss complaint on the merits—-where nonsuit proper.
    The Municipal Court of the city of Mew York can only dismiss a complaint on the merits when at the close of the whole case the plaintiff is not entitled to recover as a matter of law. Thus when the evidence establishes a question of fact the court must determine that question and cannot dismiss on the merits. Even if the plaintiff entirely fails to prove his- cause of action only a nonsuit can be granted, not a dismissal on the merits, for on a new trial the plaintiff may be able to supply the defects in his proof.
    It is only where upon the whole case the court can see that the plaintiff can never recover as a matter of law that a dismissal on the merits'is proper.
    Appeal by the plaintiff, Samuel B. Bowen, doing business as S. Bowen’s Son, from a judgment of the Municipal Court of the city of Mew York-, borough of Brooklyn, in favor of the defendant, rendered on the 29tli day of May- 1905.
    
      Richard Ely, for the appellant.
    
      Meier Steinbrink, for the respondent.
   Miller, J.:

The plaintiff complained on a balance due for goods sold-and delivered; the defendant counterclaimed a demand for goods returned in excess of the quantity not paid for. The proof developed disputed questions of fact, the determination of which required a judgment either for the plaintiff or for the defendant on his counterclaim. At the close of the whole case the justice dismissed the complaint on the merits. Section 248 of the Municipal Court Act (Laws of 1902, chap. 580) provides for a dismissal without prejudice to a new action, and section 249, so far as material, provides: “ Judgment that the action be dismissed on the merits with costs may be rendered in the folowing cases: 1. Where, at the close of the whole case, the court is of the- opinion that the plaintiff is not entitled to recover as a matter of law.”. It is plain that the dismissal “on. the merits” must have proceeded'on the theory that tlie plaintiff was not entitled to recover as matter of law; but a disputed, question of fact could not be disposed of as one of law. -Had the plaintiff entirely failed to prove, his cause of action, .the question would have been one of law, but even then a nonsuit instead of a dismissal on the merits would have been required unless-the justice- could say Upon, tire whole case as. a matter‘of la>w ,tliat the -plaintiff could not recover in any event. By reading together the two sections referred to (supra), their purpose is made obvious; .Where on a' new trial .the- plaintiff might supply some defect 'in- his proof, a honsuit'is proper; where upon the whole case' the justice can see that the plaintiff can never recover as a matter of law; a dismissal on tliemerits is proper. In this case neither one was' proper, but a determination of the disputed questions- of fact was required; The .judgment-of the ‘Municipal- Court must,, therefore, be reversed'and ia- ne-w trial- ordered, costs to abide the event.

Jenks, Hooker, Gaynor and,Rich, JJ., concurred.

Judgment of -the Municipal Court reversed and new trial ordered-, costs to abide the event.  