
    SCHNERB et al. v. CATERPILLAR TRACTOR CO.
    Circuit Court of Appeals, Second Circuit.
    February 6, 1928.
    No. 150.
    1. Judgment <@=»570(5) — Dismissal or nonsuit before defendant rests is not judgment on merits, and does not bar new action.
    Dismissal or nonsuit, rendered at the conclusion of plaintiff’s case, and before defendant had rested, is not a judgment on the merits, and does not bar a new action.
    2. Judgment <@=>570(5) — Pleadings, judgment, and record may be considered, to determine whether dismissal was on merits.
    In case of uncertainty as to whether or not dismissal was on merits, the pleadings, judgment, and record may be considered.
    .3. Judgment <@=>570(1) — Nonsuit is no bar to new action.
    Judgment of nonsuit never determines rights of parties, and is no bar to a new action.
    4. Judgment <@=>570(5)— Dismissal, not stating that it was rendered on merits, held, under New York law, no bar to subsequent suit (Code Civ. Proc. N. Y. § 1209; Civil Practice Act N. Y. §§ 23, 482, 1569).
    Under Code Civ. Proc. N. Y. § 1209, and Civil Practice Act, § 1569, providing that pending actions shall not be affected, unless expressly so provided, dismissal of an action commenced before Civil Practice Act, § 482, became effective, and which did not expressly state that dismissal was rendered on the merits, was no bar to subsequent action within one year and within requirements of section 23.
    In Error to the District Court of the United States for the Southern District of New York.
    Suit by Jules SchnerV and another against the Caterpillar Tractor Company. Judgment for defendant, and plaintiffs bring error.
    Reversed.
    William H. Page, of New York City (H. H. Nordlinger and Wm. Harvey Smith, both of New York City, of counsel), for plaintiffs in error.
    John Thomas Smith, of New York City (Prank A. Gaynor and Anthony J. Russo, both of New York City, of counsel), for defendant in error.
    Before MANTON and SWAN, Circuit Judges, and CAMPBELL, District Judge.
   MANTON, Circuit Judge.

In the former action to recover for damages sustained by these plaintiffs in error for breach of contract awarding to them an agency in certain countries of Europe, the complaint was dismissed. That complaint pleaded upon three causes of action. The first alleged breach of a contract, asserting that the plaintiffs in error had become entitled, by reason of sales made within their territory, to a sum of money, and it was alleged that the sales or agreements of sale were made between the defendant in error and a third party. The second cause of action is based upon the theory that the plaintiffs in error were the procuring cause of the sales of certain engines or tractors made to the British government, and reasonable commissions were demanded. The third cause of action was that the defendant in error had filled orders for tractors within the territory of the plaintiffs in error, exclusively allotted to it. The trial court dismissed the complaint at the end of the proof of the plaintiffs, but did not direct a verdict. The plaintiffs in error sued out a writ of error, and the judgment of dismissal was affirmed. 289 F. 1001.

Thereafter, within a year, and within the requirements of section 23 of the New York Civil Practice Act, this action was brought to recover by reason of the same occurrences, but upon the theory that the plaintiffs in error had an exclusive sales contract to sell caterpillar tractors and accessories within European countries as its territory, and that it had expended large sums of money to push the sales of the product of defendant in error, and that within such territories the defendant in error sold a very large number of tractors and accessories, and thus breached a contract which the plaintiffs in, error had for selling within these countries. The complaint alleges the exclusive right of the plaintiffs in error to sell therein, and measures their damages as the profit that they would have received from the sale of such machines. An answer was interposed to this complaint, which pleaded the defense of res adjudicata in its favor by reason of the former dismissal and affirmance thereof by this court.

At the trial below, before evidence was introduced by the plaintiffs, the defendant in error moved for the dismissal of the complaint, upon the theory that the defense of res adjudicata barred the present action. The court, after recéption of the judgment roll in that action, entertained the motion and sustained this defense.

This court has held that a dismissal or nonsuit, rendered at the conclusion of the plaintiff's case and before the defendant has rested, is not a judgment on the merits, and does not bar a new action. Lehigh Valley R. Co. v. Quereau (C. C. A.) 289 F. 767; Ploxin v. Brooklyn Heights R. Co. (C. C. A.) 261 F. 854. The same pronouncement was made in the Third Circuit, in Western Union Tel. Co. v. Ammann (C. C. A.) 296 F. 454; in the Eifth Circuit, in St. Louis Southwestern R. Co. v. S. H. Bolinger & Co., 17 F.(2d) 924; in the Eighth Circuit, in United States Farm Land Co. v. Jameson, 246 F. 592; also in the Supreme Court, in Manhattan Life Insurance Co. v. Broughton, 109 U. S. 121, 3 S. Ct. 99, 27 L. Ed. 878. If there he uncertainty as to whether or not the dismissal was upon the merits the pleadings, judgment, and record may be considered; Swift v. McPherson, 232 U. S. 56, 34 S. Ct. 239, 58 L. Ed. 499; National Foundry Co. v. Oconto Water Supply Co., 183 U. S. 216, 22 S. Ct. 111, 46 L. Ed. 157; Cline v. Southern R. Co. (D. C.) 231 F. 238. The judgment of nonsuit never determines the rights of the parties and is no bar to a new action. Homer v. Brown, 16 How. 354, 14 L. Ed. 970.

The recently enacted provisions of the New York Civil Practice Act (section 482) provide that: “A final judgment dismissing the complaint before the close of the plaintiff’s evidence does not prevent a new action for the same cause of action, unless it expressly declares that it is rendered upon the merits. A dismissal of a complaint or a counterclaim at the close of the plaintiff’s or defendant’s evidence, as the case may be, or a dismissal of a complaint or counterclaim at the close of the whole evidence, is a final determination of the merits of the cause of action and bars a new action between the same parties or their privies for the same cause of action unless the court shall dismiss without prejudice.”

It is argued that this dismissal must be deemed upon the merits, for the words “without prejudice” are not found in the judgment, and the court declined, a motion to amend the judgment, so as to contain such words. The argument is that, under the act of conformity, the New York state law is controlling. The Civil Practice Act of the state of New York went into effect October I, 1921. Section 1569 of the Civil Practice Act provides that, as to pending actions and proceedings, they shall not be rendered ineffectual or impaired by this act, or by a repeal thereof of any provision of the Code of Civil Procedure, unless otherwise expressed, and that subsequent proceedings in such action or special proceedings must be conducted in accordance with the laws in force on the day before the act takes effect.

The first action was commenced in November, 1919, before the Civil Practice Act became effective, and the trial was had in January, 1922, after the act went into effect. This record, does not show an intent of the judge presiding at the first trial to apply the provisions of section 482 of the Civil Practice Act to this case, commenced before the Civil Practice Act went into effect. The law then (section 1209 of the New York Code of Civil Procedure) provided that a final judgment dismissing the complaint, either before or after a trial rendered in an' action thereafter commenced, does not prevent a new action for the same cause of action, unless it expressly declares or it appears by the judgment roll that it was rendered upon the merits. Wagner Trading Co. v. Radillo, 205 App. Div. 833, 198 N. Y. S. 13. The former dismissal, not having been stated to have been rendered upon the merits, does not bar this action. Hopedale Electric Co. v. Electric Storage Battery Co., 132 App. Div. 352, 116 N. Y. S. 859, affirmed 198 N. Y. 588, 92 N. E. 1086. We find nothing in the New York Civil Practice Act that requires us to change the rule announced by us in Lehigh Valley R. Co. v. Quereau, supra, and Ploxin v. Brooklyn Heights R. Co., supra. It was therefore error to sustain the defense of res ad judicata in favor of the defendant.

Judgment reversed, with costs.  