
    HEXTER STABLE CO. v. NEW YORK TAXICAB CO.
    (Supreme Court, Appellate Term.
    February 5, 1909.)
    Judgment (§ 197)—Dismissal for Failure of Proof.
    Failure of plaintiff to connect defendant with the ownership of the cab which collided with defendant’s carriage does not entitle defendant to a dismissal “on the merits,” so that, on motion, the judgment should be amended by striking out such words.
    [Ed. Note.—For other cases, see Judgment, Cent. Dig. § 359; Dec. Dig. § 197.*]
    Appeal from Municipal Court, Borough of Manhattan, Fifth District.
    Action by the Hexter Stable Company against the New York Taxicab Company. From a judgment for defendant, plaintiff appeals. Modified and affirmed.
    Argued before GILDERSLEEVE, P. J., and GIEGERICH and SEABURY, JJ.
    Leo Fassler, for appellant.
    Lewis D. Mooney, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   PER CURIAM.

The plaintiff appeals from a judgment dismissing the complaint upon the merits at the close of the plaintiff’s case, and by its notice of appeal brings up foir review an order made by the trial judge denying a motion to amend the judgment by striking therefrom the words “upon the merits.” The plaintiff upon the trial was unable to connect the defendant with the ownership of the cab that collided with a carriage of the plaintiff. This failure of proof does not entitle the defendant to a judgment dismissing the complaint upon the merits, and the motion to correct the judgment should have been granted, thus saving the plaintiff the expense of an appeal.

The order must therefore be reversed, with costs, and the judgment modified, by striking therefrom the words “upon the merits” and inserting therein the words “without prejudice to a new trial,” and, as thus modified, affirmed, without costs.  