Summary
In Maes Co., Inc., v. Grace Co. (208 App. Div. 833; affd., 239 N.Y. 519), decided after the Civil Practice Act was adopted but without reference thereto, it was held that where there is a failure of proof on the part of the plaintiff, a judgment of dismissal should be modified by the addition of the words "for failure of proof, but not upon the merits," in order to permit the plaintiff to bring another action "in which such proof may be supplied."
Summary of this case from Watkins v. Pacific Finance Corp.Opinion
April, 1924.
Present — Clarke, P.J., Merrell, Finch and Martin, JJ.
This is an action for the purchase price of coffee shipped from Santos, Brazil, to New York, which was rejected by the defendant upon the ground that it was not of the quality contracted for. Plaintiff failed to introduce any evidence that the goods were of such quality. A dismissal of the complaint was therefore, proper for failure of proof. The judgment should be modified by adding "for failure of proof, but not upon the merits," and as so modified affirmed, with costs to the respondent.
Judgment modified by inserting after the word "dismissed," the following: "for failure of proof, but not upon the merits," and as so modified affirmed, with costs to the respondent.