Opinion
January 8, 1943.
Appeal from the City Court of the City of New York, County of New York.
Sol S. Zuckerman for appellant.
Israel Siegel for respondent.
The order is not appealable. (Civ. Prac. Act, § 583; Brauer v. Oceanic Steam Navigation Co., 77 App. Div.. 407; Jackman v. Hasbrouck, 168 A.D. 256; Fine v. Cummins, 260 A.D. 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 motion 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 A.D. 751.)
Appeal dismissed.
All concur. Present — HAMMER, MILLER and McLAUGHLIN, JJ.