Opinion
Argued February 22, 1949
Decided April 14, 1949
Appeal from the Supreme Court, Appellate Division, First Department, KOCH, J.
Paul O'Dwyer for appellant. John P. McGrath, Corporation Counsel ( Fred Iscol and Seymour B. Quel of counsel), for respondents.
In this action for damages for personal injuries suffered by decedent in his lifetime, but unrelated to his later death, the plaintiff's complaint was dismissed at the close of her case for failure to establish his freedom from contributory negligence. The judgment of dismissal thereafter entered did not contain a recital that it was made "without prejudice" the effect of which was to make it a final determination on the merits and to bar the commencement of another action. (Civ. Prac. Act, § 482.) Later a motion made by plaintiff to amend and correct the judgment nunc pro tunc by inserting the words "without prejudice, and not on the merits" was granted at Special Term by the Justice who had presided at the trial. Upon appeal the Appellate Division reversed on the law and the facts and denied the plaintiff's motion. The plaintiff appeals to this court by permission of the Appellate Division and upon two certified questions inquiring whether the Special Term had the power to so amend and correct its order and secondly, whether its exercise constituted an abuse of discretion. In any event, whether the Appellate Division order be treated as a new final judgment or as a new final order, it nevertheless is a final determination appealable as of right. (Civ. Prac. Act, § 588; S.J.E. Bldg. Corp. v. Matt O.M. Constr. Co., 265 N.Y. 282.) Moreover, the Appellate Division must be taken to have denied the plaintiff's motion in the exercise of discretion and not as a matter of law, with the result that no question is presented which we can reach. ( Schenectady Trust Co. v. Emmons, 290 N.Y. 225.)
The order appealed from should be affirmed, with costs, and the questions certified not answered.
LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, DYE, FULD and BROMLEY, JJ., concur.
Order affirmed, etc.