
    Abraham Rosenblum, Appellant, v. Mary Friedman, Respondent.
    Second Department,
    November 10, 1911.
    Practice —dismissal of complaint —when dismissal not on merits.
    Where at the close of a trial the plaintiff has failed to prove the facts alleged in his complaint, but there is not an impossibility of proof, and it appears that with sufficient additional evidence a question for the jury would be presented, it is improper for the court to dismiss the complaint “on the merits,” and those words will be stricken from the judgment on appeal.
    Appeal by the plaintiff, Abraham Bosenblum, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 8th day of February, 1911, dismissing the complaint on the merits. .
    
      Lester B. Freedman [Rudolph Marks with him on the brief], for the appellant.
    
      Amos H. Stephens, for the respondent.
   Woodward, J.:

This is .an actipn under the Employers’ Liability Act to recover damages for personal injuries. There can be no doubt that at the close of the evidence the defendant was entitled to a dismissal of the complaint for a failure of proof. The court, however, went further and dismissed the complaint upon the merits, and this it had no authority to do upon the case as it was then presented; there was simply a failure of proof, not an impossibility of proof which might entitle the plaintiff upon a new trial to recover. The discussion of the case by the court in dismissing the complaint clearly shows that with sufficient evidence in support of the allegations of the complaint a case would be presented for the jury, and so long as there is such a condition it is. not proper for’the court to dismiss upon the merits; that is the equivalent of saying that there could be no recovery as a matter of law under the facts alleged.

The judgment appealed from should be modified by striking out the words “ upon the merits,” and as so modified affirmed.

Jenks, P. J., Thomas, Carr and Rich, JJ., concurred.

Judgment of the Municipal Court modified by striking out the words “upon the merits,” and as so modified affirmed, without costs.  