
    Edward V. Strodl, Plaintiff, v. The Farish Stafford Company, Defendant.
    (City Court of New York, Special 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 — At close of all the evidence.
    Judgment — Amendment and correction in same court — Practice.
    Taking case from jury and non-suit — What constitutes a non-suit.
    In an action against a foreign corporation upon contract, where, after the plaintiff has introduced his proof, the defendant proves the laws of the State under which it was incorporated, and the court decides that the alleged contract was ultra vires, and, upon defendant’s motion, orders a dismissal of the complaint, such dismissal is upon the merits and the final judgment should so specify.
    And, where the judgment entered by the clerk does not state that it is upon the merits, defendant may move to correct the judgment and need not annex to his moving papers an extract from the stenographer’s minutes, for the court may refer to its own minutes to learn the facts; nor need he annex an extract from the clerk’s trial minutes which are matter of record and accessible by either party upon demand.
    Motion for an order amending the judgment entered herein.
    Edward Kellogg Baird, for plaintiff.
    Elbridge L. Adams, for defendant.
   Finelite, J.

This is a motion for a rule or order amending the judgment entered in this action in the office of the clerk of this court on the 3d day of July, 1909, and also to amend the clerk’s minutes of trial by inserting therein in the proper place the words “ upon the merits; ” that said judgment and the clerk’s minutes will show that the dismissal of the complaint herein was upon the.merits. It appears that on the trial of this action, before the court and jury, after the plaintiff had rested, the defendant offered in evidence the laws of Connecticut and then rested, and moved for a dismissal of the complaint upon the ground that the contract upon which plaintiff predicated his action wastiMra vires and illegal. The motion was granted, and the court directed a judgment in favor of the defendant on the counterclaim set up in its answer for the sum of $1,375. A judgment or postea was thereafter presented to the clerk of this court for entry, containing the words, adjudging that the complaint herein be and the same is hereby dismissed upon the merits, and that defendant have judgment against the plaintiff for the amount of its counterclaim, with costs as taxed.” On presentation of said judgment or postea to the clerk aforesaid, he struck therefrom the words “ on the merits,” and entered the judgment without said words appearing therein. It appears from the moving affidavit on this motion that this judgment is still unpaid, and that said plaintiff had instituted a new action in the Supreme Court against this defendant to recover upon the same cause of action as was litigated herein; that defendant pleaded as a defense to the said Supreme Court action the former jxidgment between the parties in this court as a judgment in bar, and desires an order amending the judgment as aforesaid, as entered herein on the 3d day of July, 1909, and the clerk’s minutes cf trial by inserting therein in the proper place the words “ upon the merits.”

The plaintiff urges two preliminary objections to this motion: First, that the minutes of the trial are not annexed to the moving papers; second, that the extract of the trial minutes of the clerk is also not annexed to the moving paper-s. I will dispose of these preliminary objections in their order. In answering the first objection, there is no necessity to annex to the moving papers the extract of the stenographer’s minutes of what took place when the complaint was dismissed, for the reason that defendant relies on the court’s minutes, which are referred to by the court in the disposition of this motion; and, to the second objection, the extract of the clerk’s trial minutes is a matter of record, and is accessible for examination by either party on demand. This disposes of the preliminary objections.

The plaintiff opposes this motion on the ground there is nothing in the stenographer’s minutes nor in the clerk’s trial minutes nor in the judgment to the effect that the complaint was dismissed “ upon the merits,” and urges that the rule is well settled that there can be no dismissal “ upon the merits ” for mere failure of proof, and quotes Genet v. Del. Canal Co., 170 N. Y. 278, revg. 49 App. Div. 645, and Hope-dale Elec. Co. v. Electric S. B. Co., 132 App. Div. 348, decided May, 1909, which hold to the effect that, under section 1209 of the Code of Civil Procedure, a final judgment dismissing a complaint does not prevent a new action for the same cause of action unless it is rendered 'on the merits. A judgment dismissing the complaint, with costs, at the close of plaintiff’s evidence, is not a bar to a new action on the same cause of action where the judgment roll does not show that it was rendered on the merits.

If the defendant desires to avail himself of the defense, in the Supreme Court action between the parties herein, that this action is a bar to that action, the judgment-roll in this action must show the real facts as to what disposition was made of the action on the trial in this court.

It appears from the stenographer’s minutes that after the plaintiff rested the defendant offered in evidence the laws of Connecticut and then rested. A motion was made by defendant’s attorney that, under the law, plaintiff cannot succeed, on the ground that he has failed to show that there was a surplus at the time when the stock was asked to be repurchased by the defendant, and that, under the law, for a corporation to repurchase stock is ultra vires; and a motion was then made to dismiss the complaint on" the ground that the plaintiff failed to make out a cause of action, and that the defendant have an affirmative judgment on the counterclaim set up in the answer on the promissory note delivered by the plaintiff to the defendant for the purchase of the stock, and which was admitted by the reply interposed by the plaintiff. The motions were granted by the court. It was not necessary to state in so many words that, when the complaint was dismissed and the court directed a verdict in defendant’s favor, it was “ upon the merits.” As was said by Spring, J., in Clark v. Scovill, 133 App. Div. 821, 824, as follows: If, instead of the court directing the jury to find for the defendants, the trial judge had by consent of the parties retained the case and made the findings the same as the jury found and dismissed the complaint, the decision would have been on the merits. Such is the rule even where no affirmative proof has been presented on behalf of the defendant. Keyes v. Smith, 183 N. Y. 377; Deeley v. Heintz, 169 id. 129. The facts are found by the jury in pursuance of the direction with the same effect as if embodied in formal findings made by the court. * * * A judgment involving only questions of law is as conclusive as one involving conflicting questions of fact. Hirshbach v. Kctchum, 79 App. Div. 561; 84 id. 258; Henck v. Barnes, 84 Hun, 549.”

And the headnote of Clark v. Scovill, supra, reads: Where a non-suit is granted because of the plaintiff’s failure to make a prima facie case, the judgment entered thereon is not upon the merits, even if the non-suit be not granted until the close of the evidence, and is designated a dismissal of the complaint. But if the dismissal of the complaint, or the direction of a verdict for the defendant, is based upon an issue which has been tendered as a defense, then the decision is upon the merits.”

The rule, as stated in 23 Cyc. 1143, is as follows: “ If both parties have been heard and have introduced testimony or had an opportunity to do so, and the court, upon the consideration of the law and facts as thus presented, dismisses the action, it is not a mere non-suit, but a judgment on the merits, and a bar to any further suit on the same cause of action.”

Section 1209 of the Code of Civil Procedure reads as follows: “A final judgment dismissing the complaint * * * after a trial * * * 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 is rendered upon the merits.”

There is no doubt that this court has the inherent power to correct clerical errors or a mistake in the entry of judgments, and as it appears in this case the court’s duty is in justice to the parties to direct the clerk to correct the minutes of the trial so that the same may be properly entered in the judgment-roll of this action.

The question whether the judgment when corrected would then be a bar to another action between the parties, or that the plaintiff is estopped from instituting a new action, or that the judgment as corrected would be res ad judicata is not before me for decision. The motion must, therefore, be granted.

Motion granted.  