
    Giuseppe Monaco, Appellant, v. John F. Lange, Respondent.
    First Department,
    July 7, 1911.
    Appeal — dismissal — reserved motion — exception — correction of defect in notice of appeal.
    Where the court reserved the decision of a motion to dismiss the complaint without objection and, the jury having disagreed, reserved the- ’ decision of a renewed motion to dismiss, which it granted after the trial was over, the plaintiff may appeal from the judgment and order of the court, although he took no exception to the dismissal of the complaint.
    The court, as a matter of course, will grant leave to correct a notice of appeal containing a slight misdescription of the order appealed from, if it he plain that there was an intention to appeal from the judgment and order upon which it was entered;
    Appeal by the plaintiff, Giuseppe Monaco, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 24th day of March, 1910, upon the dismissal of the complaint upon the merits by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 11th day of February, 1910, granting defendant’s motion for such dismissal.
    
      Rosario Maggio, for the appellant.
    
      E. Clyde Sherwood, for the respondent.
   Miller, J.:

This is an action for'personal- injuries alleged to have been caused by the defendant’s negligence. Upon the merits we deem it sufficient to say that the evidence presented a plain case for the jury, both as to the defendant’s negligence and the plaintiff’s freedom from contributory negligence. At the close of the evidence the decision of a motion to dismiss the complaint was reserved by the.court without objection and the case was submitted to the jury, who were unable to agree, whereupon the motion to dismiss was renewed and the decision of it again reserved by the court. Thereafter the court made an order dismissing the complaint on the merits. The respondent takes the point that the appellant cannot review the ruling for want of an exception.

There was no way known to our practice by which the plaintiff coiild have taken an exception to the dismissal of the complaint. An exception could not have been noted in the minutes, because the motion was not granted at the trial. There was no decision to which an exception could be filed. The court made an order dismissing the complaint and upon that order a judgment was entered. The way to review it was to appeal from the judgment and the order. The appellant has undertaken to do that. There is a slight misdescription of the order in the notice of appeal, but it is plain that the plaintiff intended to appeal from the judgment and the order upon which it was entered. Permission would be granted, as a matter of course, to correct the notice of appeal, and we think that in the interest of justice the slight misdescription of the order in the notice of appeal may be disregarded.. As a question of fact was presented by the' evidence the court was plainly in error in granting the order for the dismissal of the complaint.

The judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, P. J.,-McLaughlin, LauGhlin and Dowling, JJ., concurred.

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