Wolf v. Farkas

Appellate Terms of the Supreme Court of New York

Wolf v. Farkas

179 Misc. 702, 39 N.Y.S.2d 359, 1943 N.Y. Misc. LEXIS 1531

Appellate Terms of the Supreme Court of New York·Decided January 8, 1943·Published

Opinion

Per Curiam.

The order is not appealable. (Civ. Prac. Act, § 583; Brauer v. Oceanic Steam Navigation Co., 77 App. Div. 407; Jackman v. Hasbrouck, 168 App. Div. 256; Fine v. Cummins, 260 App. Div. 569.) The correctness of a ruling granting or denying a nonsuit during trial may only be remedied by appeal from the judgment or upon a motion for a new trial.

It may be remarked that there is nothing in this record indicating that the trial court intended in granting a nonsuit as to the second cause of action that the dismissal was without prejudice. Where a trial judge in ruling upon a motion to dismiss intends to dismiss without prejudice, and through a defect in the record that fact is not shown, it seems but just that a [703]*703motion may be made to correct the inadvertence so as to conform the record to the decision as intended by a statement in the record by the trial judge to that, effect. (Cabang v. United States Shipping Bd. Merchant Fleet Corp., 227 App. Div. 751.) Appeal dismissed.

All concur. Present — Hammer, Miller and McLaughlin, JJ.

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Per Curiam.

The order is not appealable. (Civ. Prac. Act, § 583; Brauer v. Oceanic Steam Navigation Co., 77 App. Div. 407; Jackman v. Hasbrouck, 168 App. Div. 256; Fine v. Cummins, 260 App. Div. 569.) The correctness of a ruling granting or denying a nonsuit during trial may only be remedied by appeal from the judgment or upon a motion for a new trial.

It may be remarked that there is nothing in this record indicating that the trial court intended in granting a nonsuit as to the second cause of action that the dismissal was without prejudice. Where a trial judge in ruling upon a motion to dismiss intends to dismiss without prejudice, and through a defect in the record that fact is not shown, it seems but just that a [703]*703motion may be made to correct the inadvertence so as to conform the record to the decision as intended by a statement in the record by the trial judge to that, effect. (Cabang v. United States Shipping Bd. Merchant Fleet Corp., 227 App. Div. 751.) Appeal dismissed.

All concur. Present — Hammer, Miller and McLaughlin, JJ.

Wolf v. Farkas, 179 Misc. 702, 39 N.Y.S.2d 359, 1943 N.Y. Misc. LEXIS 1531 (N.Y. Ct. App. 1943).

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Opinion

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