
    Home Credit Company of Buffalo, Inc., Respondent, v. New York Central Employees Buffalo Federal Credit Union, Appellant.
   Judgment and order reversed on the law and facts, with costs, and judgment of the Buffalo City Court modified so as to read: “ The plaintiff’s complaint is dismissed with $22.00 statutory costs, without prejudice to another action for the same cause.” Memorandum: We concur in the view entertained by both the City Court and the Supreme Court that plaintiff failed to make out a ease in the trial in City Court. The judgment of the Supreme Court, however, by reversing the City Court judgment and ordering a new trial in City Court, with costs to abide the event, has the effect of punishing defendant because of plaintiff’s failure to prove a case. In other words, plaintiff failed to prove its case in City Court, and then, by appealing, secured the right to retry its case and, in ease of better success next time, may recover costs against defendant. We think, that the most that plaintiff is entitled to is to have the privilege, at its own expense, of bringing a new action for the same cause. All concur, (The judgment reverses a judgment of the Buffalo City Court which dismissed plaintiff’s complaint, and grants a new trial in an action in conversion.) Present — Crosby, P. J., Cunningham, Dowling, Harris and McCurn, JJ.  