Marcus v. Joline

Appellate Terms of the Supreme Court of New York

Marcus v. Joline

119 N.Y.S. 172

Appellate Terms of the Supreme Court of New York·Decided November 12, 1909·Published

Opinion

PER CURIAM.

Plaintiff brought an action, based upon the alleged negligence of the defendant. At the close of the plaintiff’s case, the defendant offered no evidence, but made this motion: “I make the usual motion, if the court pleases.” Thereupon the court said: “Judgment for the defendant. The complaint is dismissed upon the [173]*173merits.” Upon this appeal, both sides concede that a dismissal upon the merits was error.

Judgment modified, by inserting a direction that the complaint be dismissed without prejudice to a new action, and, as modified, affirmed, with $10 costs to the appellant.

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PER CURIAM.

Plaintiff brought an action, based upon the alleged negligence of the defendant. At the close of the plaintiff’s case, the defendant offered no evidence, but made this motion: “I make the usual motion, if the court pleases.” Thereupon the court said: “Judgment for the defendant. The complaint is dismissed upon the [173]*173merits.” Upon this appeal, both sides concede that a dismissal upon the merits was error.

Judgment modified, by inserting a direction that the complaint be dismissed without prejudice to a new action, and, as modified, affirmed, with $10 costs to the appellant.

Marcus v. Joline, 119 N.Y.S. 172 (N.Y. Ct. App. 1909).

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119 N.Y.S. 172 (Marcus v. Joline) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.