Smith v. Buckley

152 Misc. 302, 273 N.Y.S. 330, 1934 N.Y. Misc. LEXIS 1491

Opinion

Per Curiam.

While there is a recital in the judgment in the prior action that judgment was rendered in favor of defendant against plaintiff after motion to dismiss at the end of plaintiff’s case, the actual adjudication is that defendant recover from plaintiff thirty-two dollars, costs and disbursements. It is undisputed that the prior dismissal was due to the absence of a material witness for the plaintiff; presumptively the dismissal was without prejudice (Mauro v. Cooper, 181 App. Div. 884); and the denial of plaintiff’s motion to correct the record of the prior trial does not defeat the cause of action established herein.

Judgment reversed, with thirty dollars costs, and judgment directed for the plaintiff for the amount demanded in the complaint, with costs.

All concur; present, Callahan, Frankenthaler and Shientag, JJ.