
    Sherman Realty, Inc. & another vs. Edward J. Lenza & another.
    February 19,1980.
    
      Charles E. Blumsack for the plaintiffs.
   The judge properly dismissed the plaintiffs’ amended complaint (Mass.R.Civ.P. 12[b][6], 365 Mass. 755 [1974]) because even generously read, it did not state a claim under the foreign judgment sued upon. The complaint sounded against the defendants individually while the judgment was against the defendants as trustees. In accordance with Mass.R.Civ.P. 15(a), 365 Mass. 761 (1974), leave should have been requested, and granted, to amend the complaint to conform the claim to the terms of the judgment. Charbonnier v. Amico, 367 Mass. 146, 153-154 (1975). Castellucci v. United States Fid. & Guar. Co., 372 Mass. 288, 289 (1977). Jessie v. Boynton, 372 Mass. 293, 295 (1977). Rafferty v. Sancta Maria Hosp., 5 Mass. App. Ct. 624, 626-628 (1977). At argument, it was disclosed that a new action has been filed which now states an appropriate claim under the foreign judgment. In order that the judgment (in the case before us) which is not on the merits, should not operate as a bar to that action (Mass.R.Civ.P. 41[b][3], 365 Mass. 805 [1974]), it is to be modified by inserting after the word “dismissed” in the last line of the first paragraph thereof, the words “without prejudice” and as so modified, the judgment is affirmed. See 9 Wright & Miller, Federal Practice and Procedure § 2373, at 238-242 (1971). Neither party is to have costs on this appeal.

So ordered.  