In Coit agt. Beard, (33 Barb., 357,) this court in this district expressly decided that where a judge orders that a complaint shall be dismissed either before or after evidence is given on both sides, a judgment entered on such a decision is no bar to a second action for the same cause. In the case before us we think it appears both by the record introduced at the trial, and by the evidence of Judge Thompson, that his decision in the action in the marine court was a dismissal of the complaint instead of a positive judgment for the defendants after deliberation on the points. The marine court has authority to dismiss a complaint in the same manner and to the like effect as all courts of record could grant a non-suit under the old system.
The judgment should be reversed and a new trial ordered, costs to abide event.