
    Selig Lesser, Appellant, v. Elkonan Kivowitz, Respondent.
    (Supreme Court, Appellate Term, First Department,
    November, 1912.)
    Municipal Courts — failure of proof — judgment absolute against plaintiff erroneous — actions in Municipal Courts.
    Where, in the Municipal Court upon the denial of a motion to dismiss the complaint on the ground that plaintiff had proved no damages, and also that the property shown to have been in defendant’s possession was not the same property covered by the mortgage under which plaintiff claimed to be the owner of certain chattels, the defendant rests without giving any testimony, a judgment absolute against plaintiff and in favor of defendant is erroneous, and will be modified so as to provide that the complaint be dismissed without prejudice to a new action, and. as so modified, affirmed.
    Appeal by the plaintiff from a judgment in favor of the defendant entered in the Municipal Court of the city of New York, borough of Manhattan, first district.
    Jacob Stone Freedman, for appellant.
    Cohen & Shiverts, for respondent.
   Per Curiam.

The plaintiff herein claimed ownership of certain chattels and to have obtained his title thereto by virtue of a chattel mortgage upon which the mortgagor defaulted. The pleadings were oral and the answer a general denial. At the close of the plaintiff’s case, the defendant moved to dismiss the complaint upon the ground that plaintiff had failed to prove damages and also that the property shown to have been in the possession of the defendant was not the same property covered by the mortgage. This motion was denied and the defendant thereupon rested without giving any testimony. The court below rendered a judgment absolute against the plaintiff and in favor of the defendant.

A judgment of this character can only be given when it appears from the whole case that the plaintiff cannot recover as a matter of law. Mun. Ct. Act, § 249 ; Sultan v. Misrahi, 47 Misc. Rep. 655. In the case at bar the plaintiff failed in his proof and the judgment should have been without prejudice to a new action. Mun. Ct. Act, § 248.

Judgment modified by providing that the complaint be dismissed, with costs, but without prejudice to a new action, and, as modified, affirmed, without costs of this appeal to either party.

Present: Seabuby, Guy and Bijub,' JJ.

Judgment modified, and, as modified,- affirmed.  