I concur with Goodrich, P. J. When a motion is distinctly and expressly made for a “ nonsuit,” and such motion is granted, the *436■result is a nonsuit and not a judgment upon the merits. The clerk had no lawful authority- to enter the judgment which he did, nor could the ■ individual justice who presided at the trial afterwards ratify the act at Special Term.
Bartlett, J., concurred.