The plaintiff was injured -by a fall upon the sidewalk. The sidewalk was irregularly covered with gravel or Broken stone, and had been in that condition for a long time. It is undisputed that the plaintiff knew of its condition, and her description as to how the accident occurred is limited to the statement that “ My foot slipped from under me on the gravel that was there.” No evidence on her part was given with reference to the degree of care which she was exercising or of any facts or circumstances from which an inference could be drawn that she was taking such precaution as might be deemed commensurate to the situation.
At the close of the whole evidence the defendant moved to “ dismiss the complaint for lack of affirmative proof that there was no contributory negligence; also upon the ground that the facts proven are insufficient to constitute a cause of action.” No motion was made for the direction of a verdict. The court reserved its decision upon the motion which was made, and submitted the case to the jury. A verdict was rendered in favor of the plaintiff, and thereafter judgment was rendered dismissing the complaint upon the merits. The judgment contains this recital, viz., “ the defendant having moved to dismiss the complaint and for the direction of a verdict at the close of the whole case and decision thereon having been reserved, and the court having set aside the verdict of the jury and directed a verdict for the defendant.” The court was without power to render the judgment appealed from. It could dismiss the complaint. It could not destroy the cause of action. This was expressly decided in Levy v. Grove Mills Paper Co. (80 App. Div. 384). (See, also, Hoey v. Metropolitan. Street R. Co., 70 App. Div. 60, therein cited.)
*803Tlie judgment should be modified so as to render it a judgment of nonsuit instead of upon the merits, and as modified the judgment and order should be affirmed, without costs.
Woodward and Rich, JJ., concurred; Jenks, J., read for affirmance.