
    Walter K. Freeman, Resp’t, v. The United States Electric Lighting Co., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 16, 1891.)
    
    Judgment—Dismissal of complaint.
    Where the minutes of the court show simply that the complaint in an action was dismissed, the clerk in making out the postea has no right to add the words “ upon the merits,” and a judgment so entered is unauthorized and should he set aside.
    Appeal from order granting plaintiff’s motion to vacate and set aside judgment entered in favor of defendant.
    
      John Noiman, for app’lt; Henry Yonge, for resp’t.
   Van Brunt, P. J.

This action was tried at the circuit before a jury, appears therein was dismissed.

Thereupon a judgment roll was filed, the postea in which adjudged that the defendant have judgment against the plaintiff upon the issues in this action, dismissing the complaint upon the merits. A motion was made to set aside this judgment as unwarranted, which was granted, and from the order thereupon entered this appeal is taken.

Without expressing any opinion upon the question as to when the court has power to dismiss a complaint upon the merits, in the disposition of this appeal it is sufficient to say that the clerk has no such power.

There was no evidence before the clerk going to show that the court had ever dismissed the complaint upon the merits. The clerk of the circuit certified simply that the complaint had been dismissed; and the clerk of the court in entering the judgment seems to have evolved out of his own imagination the idea that the complaint had been dismissed upon the merits. Clearly such a judicial function has nowhere in the Code been conferred upon the clerk. All that he could rdo in the making out of the postea to be contained in the judgment-roll -was to follow the minutes to the effect that the complaint had been dismissed.

We think, therefore, that the order was right and should be affirmed, with ten dollars costs and disbursements.

Brady and Daniels, JJ., concur.  