
    MILLS v. INTERURBAN ST. RY. CO.
    (Supreme Court, Appellate Term.
    May 19, 1904.)
    1. Municipal Court—Failure of Proof—Dismissal.
    Under Municipal Court Act, Laws 1902, p. 1561, c. 580, § 248, subd. 4, providing that an action shall be dismissed, with costs, without prejudice to a new action, where the plaintiff does not prove his cause of action, it was error for the court, in an action for negligence, to refuse to permit plaintiff to discontinue on his failure to prove defendant’s negligence, and to order a dismissal of the complaint.
    
      Appeal from Municipal Court, Borough of Manhattan, Ninth District.
    Action by George W. Mills, Jr., against the Interurban Street Railway -Company. From a Municipal Court judgment in favor of defendant, plaintiff appeals. Modified.
    Argued before FREEDMAN, P. J., and TRUAX and SCOTT, JJ.
    Walter L. Bunnell, for appellant.
    Henry W. Goddard and William E. Weaver, for respondent.
   PER CURIAM.

When the plaintiff in this action rested his case, the defendant moved to dismiss the complaint, upon the ground that the plaintiff had failed to prove any negligence on the part of the defendant. The plaintiff thereupon conceded that he had failed to prove a cause of action against the defendant, and asked leave of the court to discontinue the same. This leave was refused by the court, and the complaint was dismissed, judgment absolute being rendered against the plaintiff, and in favor of the defendant, with costs.

Under section 248 of the municipal court act (Laws 1902, p. 1561, c. 580) it is provided that judgment that the action be dismissed with costs, without prejudice to a new action, shall be rendered in the following cases, among others: Subdivision 4. Where the plaintiff does not prove his cause of action.

The judgment herein should therefore be modified by providing that the complaint be dismissed, with costs, without prejudice to a new action, and, as thus modified, affirmed, without costs of this appeal.  