Opinion
December 2, 1957
Appeal from an order denying appellant's motion to strike the words "upon the merits of this action" from the judgment dismissing his complaint as to respondent. Order affirmed, with $10 costs and disbursements. Appellant alleged in his amended complaint to recover damages for personal injuries against respondent and another that he was injured through the negligence of the operator of a truck owned by respondent. At the trial he failed to prove ownership of the truck and the court thereupon dismissed the complaint as against respondent, without declaring that the dismissal was without prejudice. Judgment on the merits was thereupon entered in favor of respondent against appellant. At the trial appellant made no application to have the dismissal declared to be without prejudice, nor did his attorney disclose what proof of such ownership was or would in the future become available to him. On the contrary, he indicated that he had no further information thereon. The record does not disclose anything from which it may be determined that the Trial Justice intended, in the first instance, that the dismissal should be without prejudice. Under such circumstances the court had no power to amend the judgment in such manner as to change its decision. The motion was therefore properly denied. ( Cabang v. United States Shipping Bd. Merchant Fleet Corp., 227 App. Div. 751; Testa v. Armour Co., 255 App. Div. 998; cf. Herpe v. Herpe, 225 N.Y. 323.) Nolan, P.J., Beldock, Murphy, Hallinan and Kleinfeld, JJ., concur.