
    REGULUS CIGAR CO. v. FLANNERY.
    (Supreme Court, Appellate Term.
    June 27, 1907.)
    Trial—Dismissal—Failure of Proof.
    Where the plaintiff failed in its proof, it was error for the court to deny defendant’s motion to dismiss the complaint.
    [Ed. Note.—For eases in point, see Cent. Dig. vol. 46, Trial, §§ 359,. 360.]
    Appeal from Municipal Court, Borough of Manhattan, Seventh District.
    Action by the Regulus Cigar Company against John P. Flannery. From a judgment for defendant, plaintiff appeals.
    Modified and affirmed.
    Argued before GILDERSLEEVE, P. J., and SEABURY and PLATZEK, JJ.
    Samuel F. Hyman, for appellant.
    Myers & Goldsmith, for respondent.
   PER CURIAM.

An examination of the record shows that the plaintiff failed in its proof, and for that reason alone the defendant’s motion to dismiss the complaint should have been granted. The learned trial justice, however, gave a judgment in favor of the defendant.

The judgment should be modified, by directing that the action be dismissed, with costs, without prejudice to a new action, and, as modified, affirmed, without costs of this appeal.  