The plaintiff sues to recover damages for personal injuries, resulting, it is charged, from the defendant's negligence. She had a verdict in her favor at the Trial Term. At the Appellate Division the judgment was reversed and the complaint dismissed. The conclusion of that court was that the plaintiff had failed as a matter of law to prove her own freedom from contributory negligence, and in that conclusion we concur. We are now asked to hold that the Appellate Division was without power to dismiss the complaint, and that the judgment should be modified by directing a new trial. *Page 45 The jurisdiction of the Appellate Division in such circumstances is no longer an open question in this court. It is established by our decision in Middleton v. Whitridge (213 N.Y. 499). (See also: Bullock v. N.Y.C. H.R.R.R. Co., 213 N.Y. 694, andJunkermann v. Jankelson, 213 N.Y. 404, decided at the same time.) The plaintiff argues that the motion to dismiss the complaint, if granted at the Trial Term, would have resulted in a nonsuit only; that a nonsuit would not bar another action; but that the judgment of the Appellate Division, because characterized in the statute as final (Code Civ. Pro. § 1317), extinguishes the plaintiff's right forever. The judgment before us leads to no such consequences. It is not a judgment on the merits. It merely dismisses the complaint. We do not doubt that the Appellate Division has the power to direct judgment on the merits in any case where a motion for that relief has been made at the Trial Term and has been erroneously denied. In this case, however, the only motion was for the dismissal of the complaint, and the judgment of the Appellate Division is no broader than the judgment of nonsuit which was asked for at the trial. It is final, because it is not interlocutory. It puts an end to this action, but another action is not barred. (Code Civ. Pro. §§ 405, 1209.)
The judgment should be affirmed, with costs.
WILLARD BARTLETT, Ch. J., HISCOCK, COLLIN, CUDDEBACK, HOGAN and CARDOZO, JJ., concur; SEABURY, J., dissents on the ground that the plaintiff was not as matter of law guilty of contributory negligence. *Page 46