
    Alexander Smith Cochran, Landlord-Appellant-Respondent, v. Charles A. Whitney, Tenant-Respondent-Appellant.
    (Supreme Court, Appellate Term,
    January, 1910.)
    Former adjudication: Adjudications operative as bar or as conclusive evidence — Rule that former judgment must have been on the merits — Judgment dismissing complaint — On the pleadings: Adjudication in particular actions or proceedings — Actions between landlord and tenant — Summary proceedings — Dismissal on the pleadings.
    When a case is submitted by the parties upon the pleadings without offering evidence, a denial in the answer will be deemed sufficient on appeal, though it involve a negative pregnant, if no objection was taken to it on that ground by the court below.
    Where a summary proceeding for the recovery of real property is decided, solely upon a question of pleading, in the tenant’s favor, the dismissal should not be upon the merits but should be without prejudice to another proceeding.
    Cross appeals from a final order of the Mnnicipal Court of the city of Mew York, borough of Manhattan, ninth district, in a summary proceeding, which order dismissed the proceeding without prejudice to the bringing of a new proceeding.
    Maitland F. Griggs (Israel A. Washburne, of counsel), for the landlord.
    Henry W. Rudd (Dwight P. Dilworth, of counsel), for the tenant.
   Giegerich, J.

This was a summary proceeding to remove the tenant upon the ground that he was holding over after the expiration of his term. The petition, after setting out a great deal of matter which is admittedly immaterial, alleged the making of a lease which expired on October 1, 1909.. The answer denied, absolutely, a good deal of the immaterial matter and some of the conclusions, but made its denial of the material part of the petition in the form of a negative pregnant. The answer also set up a separate defense, the nature of which it is not necessary to state.

The issues being thus -confused, the parties submitted them to the trial court upon the pleadings, neither side offering any evidence. The court dismissed the proceeding without prejudice to the commencement of a new one. The tenant now insists that the dismissal should have been on the merits, while the landlord is equally insistent that there should have been no dismissal at all, but a final order in his favor.

The dismissal was right because, although the form of the denial was that of a negative pregnant, the objection was not taken either prior to or at the time of the trial, and the answer, bad as it is in form, must be considered good in substance. Wall v. Buffalo Water Works, 18 N. Y. 119; Frees v. Blyth, 99 App. Div. 541.

The trial court was also quite right in making the dismissal without prejudice to a new proceeding. Section 253 of the Municipal Court Act recognizes the propriety of a dismissal in summary proceedings, but I do not find, either in that act or in the provisions of the Code of Civil Procedure relating to summary proceedings, any specific provision authorizing a dismissal of the petition upon the merits. Such a disposition is provided for in the case of actions by section 249 of the Municipal Court Act, but only where, at the close of the whole case, the court is of the opinion that, as a matter of law, the plaintiff is not entitled "to recover. A dismissal, without prejudice, was clearly what was required in the present case and not a final order awarding possession to the tenant nor a dismissal on the merits, assuming that the court had power to make the last named order in a proper case. The case was left upon the pleadings and without evidence from either side, and it was decided solely on a question of pleading. Only the landlord’s case, or so much of it as was admitted by the answer, was before the court. He had not heard the “ whole case ” and could not have any opinion concerning the rights of the parties upon the merits.

The order appealed from should, therefore, be affirmed.

Inasmuch as the Municipal Court Act (§ 345, subd. 3) requires us to award costs where an order of this character is affirmed (Martin v. Tarbox, 23 Misc. Rep. 761; Bevins & Rogers App. Term. Pr. 111), and, as both parties have appealed, costs will be awarded to each of them, with a provision for an off-set of the costs. Martin v. Tarbox, supra; Bevins & Rogers App. Term. Pr. 107.

Dayton and Lehman, JJ., concur.

Order affirmed.  