Testa v. Armour & Co.

255 A.D. 998, 8 N.Y.S.2d 302, 1938 N.Y. App. Div. LEXIS 6216

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 16, 1938
• Status: Published

Opinion

At the close of the plaintiffs’ case at a trial before the court and a jury, the court of its own motion dismissed the plaintiffs’ complaint. Thereafter, judgment was entered dismissing the complaint on the merits. (Civ. Prac. Act, § 482.) Upon motion of the plaintiffs, the court modified the judgment by providing that the dismissal was without prejudice, and an order was entered accordingly. The defendant appeals. Order, in so far as it grants plaintiffs’ motion to amend the decision and judgment, reversed on the law and the facts, without costs, and motion denied, without costs. Nothing in this record indicates that the trial court, when it first acted, intended that the dismissal should be without prejudice. In such circumstances, the trial court was without power to review its own decision and judgment. (Cabang v. United States Shipping Board Merchant Fleet Corp., 227 App. Div. 751.) Lazansky, P. J., Davis, Adel, Taylor and Close, JJ., concur.