
    COIT a. BLAND.
    
      Supreme Court, First District;
    
    
      General Term, March, 1861.
    Dismissal of Complaint.—Former Adjudication.
    The dismissal of the complaint under the Code of Procedure, in an action in the nature of what were formerly termed common-law actions, is identical with a nonsuit under the former practice.
    Such a dismissal is no har to a subsequent action for the same cause.6
    
      A judge before whom a common-law cause is tried without' a jury, acts in the double capacity of court and jury; and when, instead of rendering ^. judgment in express terms for the defendant, he orders that the complaint should be dismissed, it is to be presumed he then acts as the court, exercising the prerogative, which it has always possessed, of nonsuiting the plaintiff, either before or after the evidence is given on both sides.
    Appeal from a judgment.
    In this action the defendant interposed, as a bar, a former judgment between the same parties. It appearing that snch judgment was simply a dismissal of the complaint in the former action, the court excluded it, and the plaintiff having recovered, the defendant appealed.
    
      
       The contrary rule prevailed in equity. A decree dismissing a bill on the merits, without reservation, is a bar to a new bill for the same matter, brought by the same plaintiff, or his representatives,, against the same defendant, or his representatives. (Ferine a. Dunn, 4 Johns. Gh., 140; Holmes a. Remsen, 7 lb., 286; and see Griswold a. Jackson, 2 Edw., 461.)
      A decree in equity, upon the merits, dismissing a bill filed to set aside a deed, affirms its validity, and concludes the plaintiff. (Lansing a. Russell, 13 Barb., 610; to similar effect, Burhans a. Van Zandt, 7 lb., 91.)
      So where a bill filed by an heir to contest a will, alleged that although duly executed it was void for illegality; and one defendant answered, admitting that it was void, if well executed; and the bill was dismissed on the ground that the will was not illegal;—Held, that the defendant was not precluded, in a subsequent suit, from contesting the due execution of the will. (Mason <z. Alston, 9 N. T. (6 Seld.), 28.)
      But where the plaintiff in the former suit has since acquired a legal estate, or legal advantage, and the former defendant files his bill against him for the same matter, the cause is opened on the merits. (Neafie a, Neafie, 7 Johns. Oh., 1.)
      
        A decree on a bill taken pro confesso, against an absentee, is a bar to an original bill filed by him for the same matter. He must come in, under the statute (1 Seo. L. of 1813, 486, § 9), and defend. (Davoue a. Fanning, 4 Johns. Oh., 199.)
      A decree dismissing the bill of complaint, after replication filed and an order closing the proofs, is a bar to a subsequent suit between the same parties for the same cause, although no proofs were taken, and the decree was by default at the hearing. (Ogsbury a. La Farge, 2 AT. T. (2 Comst.), 113.) But compare, however, Bosse a. Bust (4 Johns. Oh., 300), where it was held (citing 1 Aik., 571; Mitf. PI., 195), that where a cause was set down for hearing on the bill and answer, and dismissed because no one appeared for the plaintiff, the enrolled decree is no bar to a fresh suit.
      In Morris a. Floyd (5 Barb., 130), where a mortgagor, being sued at law, pleaded usury, but failed to appear at the trial,—Held, that the verdict and judgment against him estopped him from interposing tjhe defence in equity, upon foreclosure.
      In the case of Earl a. Campbell (14 How. Pr., 330), a creditor’s action had been previously brought against a grantor and grantee, to set aside the conveyance on the ground of fraud, as against the plaintiff, and a separate judgment having been taken therein, as against the grantor, and an order of discontinuance entered, as against the grantee ;—Held, that the action not having been brought to trial against the grantee, such discontinuance was no bar to a new suit against him.
      . The former judgment is no bar if it was rendered against the plaintiff on the ground that his action was premature (Quackenbush a. Ehle, 5 Barb., 469), or if it went upon the ground that the court in which the action was brought lacked jurisdiction. (Varick a. Edwards, Hoffm., 382 ; People a. Cooper, 8 How. Pr., 288.)
    
   By the Court.—Clerke, P. J.

—The dismissal of the complaint, under the modern practice of the Code, seems to me in all respects identical with a nonsuit, in actions which formerly were called common-law actions. In all actions of this nature, I think, it was intended by the Legislature, in enacting the Code, that the one term should be substituted for the other. It is also evident that the convocation of judges who framed and adopted the rules of this court, considered them identical. (See Rules 23, 24.) In the language of the Superior Court, in Harrison a. Wood (2 JDuer, 50), “ the dismissal of the complaint, under the Code, has no other effect than that of a nonsuit un-' der the former practice. There is a change of name, and nothing more.” If this is a correct view, there can be no doubt that the judge at the second trial properly decided not to regard the judgment in the first action as a bar to the second. A non-suit never precluded the plaintiff from bringing his action again, whether it was granted before or after the evidence was given on both sides; and the judge had a right to nonsuit at any stage of the trial. (Jansen a. Acker, 23 Wend., 480; Rudd a. Davis, 3 Hill, 287.) The form of the judgment, in all these cases, was that the complaint should be dismissed. If the Legislature intended that the dismissal of the complaint, in an action at common law, should have the same effect as it had in equity cases under the old system, it would have distinctly said so. We are not to imply so important a change—a change that would operate so seriously on the rights of a suitor, as to prevent him from again trying to establish his claim, after failing in the first instance from the accidental deficiency of proof, or from any other cause. A judge before whom a common-law cause is tried without a jury, acts in the double capacity of court and jury; and when, instead of rendering a judgment in express terms for the defendant, he orders that the complaint should be dismissed, it is to be presumed he then acts as the court, exercising the prerogative, which it has always possessed, of nonsuiting the plaintiff, either before or after the evidence is given on both sides.

The judgment should be affirmed. 
      
       Present, Clerke, P. J., Sutherland and Allen, JJ.
     
      
       To similar effect, see Bishop a. Morgan, 1 Code R., N. S., 340.
     