
    Henry Pollak, Appellant, v. The Dodge Manufacturing Company, Respondent.
    (Supreme Court, Appellate Term, First Department,
    June, 1913.)
    Judgments — rendition of — on demurrer to complaint —■ upon the merits.
    Unless a judgment is so rendered, the court has no right to make it conclusive by the insertion of the words “ upon the merits.”
    If a judgment on a demurrer to a complaint is predicated upon the omission of certain essential allegations of fact which could be supplied by amendment, the decision is not that the facts alleged show that plaintiff has not a cause of action, but that because certain other facts are not alleged a cause of action is not stated and the merits of plaintiff’s cause of action are not determined; the test is, does the insufficiency relate to the facts alleged or to the allegation of the facts; if the former, the judgment is upon the merits; if the latter, it is not.
    Appeal by the plaintiff from a judgment of the City Court of the city of New York, dismissing the complaint upon the merits.
    
      Ferguson & Ferguson (Leslie C. Ferguson, of counsel), for appellant.
    Marshall B. Clarke, for respondent.
   Page, J.

In the complaint in this action a cause of action for damages by reason of false and fraudulent representations is sought to be stated. The defendant demurs for insufficiency. The demurrer was sustained and the plaintiff given six days in which to serve an amended complaint. An appeal was taken to this court and the interlocutory judgment was affirmed. 78 Misc. Rep. 350. The plaintiff failed to avail himself of the leave given to serve the amended complaint and final judgment was granted dismissing the complaint upon the merits. The interlocutory judgment merely provided for the dismissal of the complaint upon failure to amend. The learned justice of the City Court expresses the view that where an opportunity to amend is not accepted the judgment should be rendered in such form as to finally and conclusively dispose of the case. Unless the judgment is upon the merits the court has no right to make the judgment conclusive by the insertion of these words in the judgment. A judgment entered upon a demurrer to a complaint setting forth the facts may be equally conclusive of the matters confessed by the demurrer as a verdict finding the same facts would be. Clark v. Scovill, 133 App. Div. 821; Hirschbach v. Ketchum, 79 id. 561; 84 id. 258; Stowell v. Chamberlain, 60 N. Y. 272, 277. But it is not necessarily so, for, if the judgment on the demurrer is predicated upon the omission of certain essential allegations of facts which could be supplied by an amendment, the decision of the court is not then that the facts alleged show that the plaintiff has not a cause of action but that because certain other facts are not alleged a cause of action is not set forth and the merits- of the plaintiff’s cause of action are not determined. In other words the test is, does the insufficiency relate to the facts alleged or to the allegation of the facts ? If the former, the judgment is upon the merits; if the latter it is not. Upon an examination of the complaint and the opinion of this court on the former appeal it appears that the merits were not involved. The facts stated, with certain other facts not sufficiently stated, but which might be stated, would constitute a good cause of action.

The judgment should therefore be modified by striking therefrom the words “ upon the merits ” and as modified affirmed, with ten dollars costs and disbursements to the appellant.

Seabuby and Bijub, JJ., concur.

Judgment modified, and, as modified, affirmed, with ten dollars costs and disbursements to appellant.  