
    Henry Hicks, Appellant, v. Ezra G. Shives, Respondent.
    
      Evidence admitted without objection — objection thereto on appeal—when a judgment should recite that it is not on the merits.
    
    The point that evidence, admitted without objection on a trial, was not admissible under a general denial, is not available upon appeal.
    A judgment dismissing a complaint upon the ground that the action was prematurely brought should contain a recital that the dismissal was not upon the merits.
    Appeal by the plaintiff, Henry Hicks, from a judgment of the Municipal Court of the city of Hew York, borough of Queens, entered on the 7th day of June, 1901, upon the decision of the court.
    
      Olmton T. Roe, for the appellant.
    
      James B. Darcy, for the respondent.
   Per Curiam :

The complaint set out two causes of action, one for work, labor and services and materials furnished, amounting to fifty dollars and ten cents, in repairing a wagon belonging to the defendant, and the other for damages in the sum of five dollars growing out of injuries done to a sleigh which the defendant borrowed from the plaintiff. The answer was a general denial. The proof in behalf of the plaintiff showed that he had done the alleged work upon the wagon and also that the defendant had injured his sleigh and had promised to pay five dollars for the necessary repairs thereon. In behalf of the defendant the evidence tended to show that the plaintiff had agreed to wait for his pay for repairing the wagon until the trial and determination of the suit against the city of Hew York, wherein the defendant should endeavor to charge that municipality with liability for the accident in which the vehicle was injured. The plaintiff in rebuttal denied having made any such agreement, but the justice before whom the case wras tried must have held with the defendant on this issue, for he rendered judgment in favor of the defendant, with costs. Of course this judgment also disposed of the claim in respect to the sleigh adversely to the plaintiff, although the testimony to the effect that the sleigh had been damaged and as to the extent of such damage was in no wise controverted.

The appellant argues that the court erred in receiving evidence that the plaintiff had agreed to await payment until after determination of the defendant’s suit against the city of Hew York, claiming that such evidence was not admissible under a general denial; but this point is not now available to him, inasmuch as the evidence was received without objection.

It is plain, however, that the judgment should not be allowed to stand. Assuming that the court below was right on the facts in holding that the action was prematurely brought because the time of payment for the repairs on the wagon had not yet arrived, the judgment should simply have dismissed the complaint as far as the first cause of action was concerned, and should have contained a recital that the dismissal was not upon the merits. As to the second' cause of action, in respect to the sleigh, that was clearly made out and entitled the plaintiff to a recovery of at least five dollars.

Judgment reversed and new trial ordered, costs to-abide the event*

Present — Goodrich, P. J., Bartlett, Woodward, Hirsohberg- and Sewell, JJ.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  