
    Sophie Merkin, by Guardian, Appellant, v. Louis Gersh, Respondent.
    (Supreme Court, Appellate Term,
    March, 1900.)
    Municipal Court of the city of Mew York — Failure of proof does not justify a dismissal on the merits.
    Under the Consolidation Act (Laws of 1882, chap. 410, § 1382), where the plaintiff does not prove his cause of action in the Municipal Court of the city of New York, the justice must dismiss the action with costs, without prejudice to a new action, and has no power to dismiss it on the merits.
    Appeal from a judgment in favor of the defendant, rendered in the Municipal Court of the city of New York, fourth district, borough of Manhattan.
    Abraham H. Sarasohn, for appellant.
    Rosenthal & Rosenthal, for respondent.
   Per Curiam.

The only evidence in the case, that of the plaintiff and her father, clearly established a contract on the part of the defendant to employ the plaintiff for a definite term. At the close of the plaintiff’s case, the justice, disregarding the uncontradicted evidence, dismissed the complaint. In doing this he was in error. The evidence was at least sufficient to call upon the defendant to answer it. The plaintiff’s statement, on cross-examination, that she said to the defendant that he could discharge her if he pleased, must be read in connection with the defendant’s remark, which drew it forth, that she would have to do her work properly or get out. Thus read, it means no more than that he could discharge her if she did not do her work properly. There is no evidence that she failed to do this. The justice granted a judgment dismissing the complaint on the merits. In so doing he exceeded Ms power. Section 1382 of chapter 410 of the Laws of 1882 provides that, where a plaintiff does not prove his cause of action, the judgment must be that the action be dismissed, with costs, without prejudice to a new action. This is the limit of the power of the justice in such a case. The respondent suggests that it nowhere appears upon the record that the defendant resides within the territorial jurisdiction of the Municipal Court, and that, for this reason, the judgment Was right and must be affirmed. This objection was not talren below and did not constitute the ground upon which the justice based his judgment. The pleadings were oral, and in such case every complaint is deemed to contain all the necessary allegations to sustain the cause of action proved,' including the necessary jurisdictional facts. Upon another trial, which must be ordered by reason of the errors above pointed out, the plaintiff may be able to supply the necessary evidence as to the defendant’s residence.

Judgment reversed and new trial granted, with costs to the appell ant to abide the event.

Present: Truax, P. J., Scott and Dugro, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  