
    New England Furniture Company, Appellant, v. Morris Joseph, Respondent.
    (Supreme Court, Appellate Term,
    March, 1911.)
    Former adjudication — Pleading and evidence — Evidence in general — Minutes of trial.
    Where no formal judgment is entered in an action brought in the Municipal Court of the city of New York other than by indorsement on the papers, it is proper to examine the record to discover whether a dismissal of the complaint was upon the merits or merely for failure of proof, in order to determine whether the judgment could be pleaded as a former adjudication.
    Appeal by plaintiff from a judgment of the Municipal Court of the city of ¡New York, borough of Manhattan, sixth district, dismissing the complaint.
    Otto A. Samuels, for appellant.
    Jacob Cebulsky, for respondent.
   Per Curiam.

On the trial of this action, defendant offered in evidence the judgment roll of a prior action between the same parties and asked for the dismissal of the complaint on the ground of res judicata. The judgment roll in the prior action is not in evidence; but the court, while examining it, and evidently reading from it, states that the complaint was dismissed on the merits. The minutes of the previous trial are in evidence, however, and show that, at the close of the case, defendant moved to dismiss on the ground that the plaintiff- had failed to prove delivery, which motion was granted.

In a court of inferior jurisdiction such as the Municipal Court of the city of ¡New York, where no formal judgment is entered other, than the indorsement of the justice ón the papers, it is proper to examine the record to discover what disposition was actually made of the case. The previous disposition, having been merely dismissal for failure of proof, was not -a bar to the present action.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.

Present: Seabury, Page and Bijur, JJ.

Judgment reversed.  