Opinion
January 26, 1948.
Action to recover damages for personal injuries. Judgment dismissing the complaint reversed upon the law and a new trial granted, with costs to appellant to abide the event. The dismissal by the trial court "on the merits" before the close of plaintiff's evidence was error (Civ. Prac. Act, § 482); and the judgment thereupon entered, incorrectly reciting that the motion to dismiss was granted "at the close of the case", and not providing that the dismissal was "without prejudice" must be reversed. (Civ. Prac. Act, § 482; Hollenbeck v. Aetna Casualty Surety Co., 215 App. Div. 609, affd. 243 N.Y. 540; Assalone v. Hazel, 243 App. Div. 176.) The judgment entered was not a default judgment. ( Citizens Trust Co. v. Prescott Son, Inc., 221 App. Div. 426.) Lewis, P.J., Carswell, Adel, Sneed and Wenzel, JJ., concur.