Data-Guide, Inc. v. American R. D. M. Corp.

Appellate Division of the Supreme Court of New York

Data-Guide, Inc. v. American R. D. M. Corp.

18 A.D.2d 995, 238 N.Y.S.2d 728, 1963 N.Y. App. Div. LEXIS 4075

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 26, 1963

StatusPublished

Cited by1 cases

This text of 18 A.D.2d 995 (Data-Guide, Inc. v. American R. D. M. Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Data-Guide, Inc. v. American R. D. M. Corp., 18 A.D.2d 995, 238 N.Y.S.2d 728, 1963 N.Y. App. Div. LEXIS 4075 (N.Y. Ct. App. 1963).

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Opinion

Order, entered on June 29, 1962, granting defendant’s motion to [996]*996dismiss the complaint, under rule 107 of the Rules of Civil Practice, on the ground that there is a prior judgment determinative of the issues, unanimously reversed, on the law, without costs to any party, the motion denied, and the judgment entered thereon vacated. The statute is explicit (Civ. Prae. Act, § 482). Unless the prior judgment dismissing the complaint before the close of plaintiff’s evidence was expressly declared to be on the merits, it does not bar a subsequent action for the same cause. In this ease, the prior judgment did not so declare, and, of course, it was, rendered prior to any trial or hearing on the merits. A compulsory nonsuit is!not to be confused with a judgment which either determines the merits or, although not determining the merits, determines an issue of fact or of law in abatement or personal to a litigant (cf. Restatement, Judgments, §§ 49, and 50 with § 53, together with respective Comments; see, also, e.g., Linton v. Perry Knitting Co., 295 N. Y. 14, 17). Concur — Botein, P. J., Breitel, Yalente, Stevens and Steuer, JJ. [35 Misc 2d 704.]

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Order, entered on June 29, 1962, granting defendant’s motion to [996]*996dismiss the complaint, under rule 107 of the Rules of Civil Practice, on the ground that there is a prior judgment determinative of the issues, unanimously reversed, on the law, without costs to any party, the motion denied, and the judgment entered thereon vacated. The statute is explicit (Civ. Prae. Act, § 482). Unless the prior judgment dismissing the complaint before the close of plaintiff’s evidence was expressly declared to be on the merits, it does not bar a subsequent action for the same cause. In this ease, the prior judgment did not so declare, and, of course, it was, rendered prior to any trial or hearing on the merits. A compulsory nonsuit is!not to be confused with a judgment which either determines the merits or, although not determining the merits, determines an issue of fact or of law in abatement or personal to a litigant (cf. Restatement, Judgments, §§ 49, and 50 with § 53, together with respective Comments; see, also, e.g., Linton v. Perry Knitting Co., 295 N. Y. 14, 17). Concur — Botein, P. J., Breitel, Yalente, Stevens and Steuer, JJ. [35 Misc 2d 704.]

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Bluebook (online)

18 A.D.2d 995, 238 N.Y.S.2d 728, 1963 N.Y. App. Div. LEXIS 4075, Counsel Stack Legal Research, https://law.counselstack.com/opinion/data-guide-inc-v-american-r-d-m-corp-nyappdiv-1963.

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