Cabang v. United States Shipping Board Merchant Fleet Corp.

227 A.D. 751

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 15, 1929
• Status: Published

Opinion

Order granting plaintiff’s motion to amend the judgment by inserting the words “ without prejudice ” reversed upon the law and the facts, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. The trial court had no revisory power over the judgment herein under the circumstances disclosed in the record. There does not appear in this record anything indicating that the trial court intended when it acted in the first instance, that the dismissal should be without prejudice, there having been no application for any such disposition and nothing having been said by the trial court to that effect. Accordingly, under section 482 of the Civil Practice Act, the dismissal was upon the merits. This disposition is made without prejudice, if plaintiff be so advised, to a new application to the Special Term in the event that the trial justice in fact intended at the time of the trial to dismiss without prejudice and so states in the record; in such an event the motion might then be properly granted upon the theory of correcting an inadvertence and making the record conform to the decision arrived at in the first instance. Lazansky, P. J., Kapper, Hagarty, Seeger and Carswell, JJ., concur.