
    EIDLIN v. STATE BANK.
    November 29, 1907.)
    (Supreme Court, Appellate Term.
    Judgment—Failure of Proof—Form of Judgment.
    Where plaintiff, at the close of his evidence, was not entitled to judgment for failure of proof, and defendant’s motion to dismiss the complaint on that ground was denied, whereupon defendant rested, it was error to give judgment for defendant on the merits; the proper judgment being one of dismissal only.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 30, Judgment, § 359.)
    Appeal from Municipal Court, Borough of the Bronx, Second District.
    Action by Meier Eidlin against the State Bank. From a Municipal Court judgment in favor of defendant, plaintiff appeals. Modified and affirmed.
    -Argued before GIEDERSLEEVE, P. J., and EEVENTR1TT and ERLANGER, JJ.
    Abraham H. Sarssohn, for appellant.
    Feltenstein & Rosenstein, for respondent.
   PER CURIAM.

The proof on the part of the plaintiff was not sufficient to entitle him to a judgment. A motion to dismiss the complaint, made by the defendant’s counsel upon substantially that ground, was denied. The defendant thereupon rested, and the court gave a judgment for the defendant upon the merits. This was error. The defendant was entitled only to a judgment dismissing the complaint for failure of proof. Bowen v. Farley, 113 App. Div. 767, 99 N. Y. Supp. 205; Ætna Life Ins. Co. v. Deparquet Co., 53 Misc. Rep. 581, 103 N. Y. Supp. 800.

Judgment modified, by directing judgment for a dismissal of the complaint without prejudice to a new action, and, as modified, affirmed, without costs of this appeal to either party.  