I dissent. This is an appeal from an order of the Special Term denying plaintiff’s motion to amend the judgment, entered on "December 10, 1900, so that it may read that “a judgment of non-suit be directed to be entered herein, instead of that the said complaint be dismissed upon the merits.” The justice presiding at the Special Term whereat the motion came on to be heard sent the motion to the learned justice who had presided at the term where • the action was tried.."
It appears from the record of the trial that, at the close of plaintiff’s case, the defendant moved for a nonsuit on"'the grounds “ that no. actionable negligence has been proven against the ■ defendants,” •and “ that plaintiff has not been' shown to be free from contributory •negligence.” ■ The decision under objection was reserved until the close of the cased or the defendant. Thereupon the defendant put ' in his case, and at the conclusion of the evidence the defendant renewed “ the motion to dismiss, upon the grounds stated upon .the motion to dismiss made at the close of the plaintiff’s case. Motion granted.” This ruling was made under exception, .and in the face of a request of the plaintiff for a ■submission to the jury. I think that the form in which the counsel expressed his motion did not preclude the court, in passing upon that motion, from a disposition of • the case upon the merits. .
I naturally assume that the learned trial justice, who also heard the motion at Special Term, knew perfectly well what disposition he intended to make of the case upon the trial. The nature and character of the judgment is to be determined by the disposition made by the trial court upon the evidence, and “ a decision disposing of the case on the merits is properly rendered on a motion for a dismissal of the complaint.” (Deeley v. Heintz, 169 N. Y. 130, 134.) I think that the learned trial justice had the power to dismiss the complaint upon the merits. Thus, in the case of McDonald *437v. Metropolitan Street Railway Co. (167 N. Y. 66), which is a cogent reassertion of the maxim “ Ad qucestiones faeti non respondentjudices,” it is said: “ If the evidence is insufficient, or if that which has been introduced is conclusively answered, so that, as a matter of law, no question of credibility or issue of fact remains, then the question being one of law, it is the duty of the court to determine it.” (See, too, Laidlaw v. Sage, 158 N. Y. 73, 89 et seq.) It is unimportant whether the clerk was authorized to enter such a judgment upon the record, because it now appears that the judgment as it stands has had the subsequent approval of the court which made the decision (Card v. Meincke, 70 Hun, 382), and I think that such approval was fairly within the inherent power of the court over its own judgments. (See Petrie v. Trustees of Hamilton College, 92 Hun, 81, and authorities cited.)
I think that the question presented by this appeal is not whether the disposition made by the learned court at Trial Term was erroneous upon the facts and the law, but whether it had the right to make a decision of dismissal upon the merits. In Martin v. Cook (14 N. Y. Supp. 329; affd., 142 N. Y. 654), the court (Van Brunt, P. J., and Daniels, J.) say: “ Where a complaint is dismissed because of failure of proof, the dismissal is not upon the merits, because the merits are not involved, the complaint being dismissed because of the want of merit in the proof. It is only where' a prima facie case is made out, and proof offered to rebut it, that the merits are involved.” In the casé at bar a prima facie case was made out, and proof was offered to rebut it.
Woodward, J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion to amend granted, with ten dollars costs.