
    BERNSTEIN v. BEAR LITHIA SPRINGS WATER CO.
    (Supreme Court, Appellate Term.
    December 7, 1904.)
    1. Judgment of Nonsuit.
    Where there is sufficient evidence for plaintiff to warrant submission and a decision of the case on the merits, a dismissal not appearing to be on the merits will be considered for insufficiency of proof and therefore erroneous.
    Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.
    Action by Morris Bernstein against the Bear Lithia Springs Water Company. From a judgment dismissing the complaint, plaintiff appeals.
    Reversed.
    Argued before FREEDMAN, P. J„ and BISCHOFF and GILDERSLEEVE, JJ.
    Charles S. Rosenthal, for appellant.
    Frederick L. C. Keating, for respondent.
   GILDERSLEEVE, J.

There was sufficient testimony presented on the part of the plaintiff herein to warrant its submission and a decision of the case upon the merits. This view was concededly taken by the trial court at the close of the trial, as he denied defendant’s motion for a dismissal of plaintiff’s complaint, but subsequently rendered a judgment dismissing the complaint. Therein he was in error. It does not appear that the dismissal was upon the merits, and we are forced to the conclusion that it was for insufficiency of proof. A nonsuit. Place v. Hayward, 117 N. Y. 487, 23 N. E. 25; Schlesinger v. Jud, 61 App. Div. 453, 70 N. Y. Supp. 616.

Judgment reversed. New trial ordered, with costs to the appellant to abide the event. All concur.  