Nelson v. Ryan

222 A.D. 754

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1927
• Status: Published

Opinion

Order and judgment reversed upon the law and the facts and new trial granted, costs to appellant to abide the event. We are of opinion that plaintiff presented a prima facie ease. The dismissal was not upon the merits. A dismissal in an equity case, without findings of fact and conclusions of law, must be regarded as a non-suit. (Civ. Prac. Act, § 441; Stephenson v. Southerland, 150 App. Div. 275; Ross v. Caywood, 162 N. Y. 259; Ware v. Dos Passos, Id. 281; Mc Nulty Brothers v. Offerman, 141 App. Div. 730.) If it be the intent to dismiss upon the merits, a decision must be made pursuant to section 440 of the Civil Practice Act. This rule is not changed by section 482 of the act. Young, Rich, Kapper and Hagarty, JJ., concur; Lazansky, J., concurs in result.