
    Freeman v. United States Electric Lighting Co.
    
      (Supreme Court, General Term, First Department.
    
    January 16, 1891.)
    Judgment—Dismissal on the Merits.
    Where a complaint is not in fact dismissed upon its merits by the court, a judgment entered up by the clerk in the usual form, with the addition of the words “dismissing the complaint upon the merits,” is unauthorized and void.
    Appeal from special term, New York county.
    
      Action by Walter K. Freeman against the United States Electric Lighting Company. Upon a trial before a jury, at the close of the plaintiff’s case, the court dismissed the complaint. The clerk entered judgment in the following form: “Adjudged that the defendant have judgment against the plaintiff upon the issues in this action, dismissing the complaint upon the merits.” The complaint was not in fact dismissed upon the merits, and, upon motion by plaintiff, the court granted an order vacating the judgment, and from that order the defendant appeals.
    Argued, before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Butler, Stillman & Hubbard, (John Hotman, of counsel,) for appellant. Townsend, Dyett <& Einstein, (Henry Yonge, of counsel,) for respondent.
   Van Brunt, P. J.

This action was tried at the circuit before a jury, and it.appears from the clerk’s minutes that the complaint therein was dismissed. Thereupon a judgment roll was filed, the postea in which adjudged that the defendant have judgment against the plaintiff upon the issues in this action, dismissing the complaint upon the merits. A motion was made to set aside this judgment as unwarranted, which was granted, and from the order thereupon entered this appeal is taken. Without expressing any opinion upon the question as to when the court has power to dismiss a complaint upon the merits, in the disposition of this appeal, it is sufficient to say that the clerk has no such power. There was no evidence before the clerk going to show that the court had ever dismissed the complaint upon the merits. The clerk of the circuit certified simply that the complaint had been dismissed; and the clerk of the court, in- entering the judgment, seems to have evolved out of his own imagination the idea that the complaint had been dismissed upon the merits. Clearly such a judicial function has nowhere in the Code been conferred upon the clerk. All that he could do in the making out of the postea to be contained in the judgment roll was to follow the minutes to the affect that the complaint had been dismissed. We think, therefore, that the order was right, and should be affirmed, with $10 costs and disbursements. All concur.  