The majority point out that the action in this (State) court was brought only as a matter of precaution and “ it is vexatious and harassing to the defendants only in a technical sense, and they would obtain complete relief by the voluntary discontinuance offered by plaintiff.” They recognize the purpose of the defendants in seeking affirmation of the judgment below is to be able to present in Federal court a contention that the matter is res judicata, but then go on to say they do not intend that result.
It would seem advisable and the only way to remove all doubt and to be assured of achieving the desired result is to modify the order appealed from to strike the words “ with prejudice.” No good reason exists why the parties should have to brief the question of res judicata in the Federal court, and the plaintiffs be exposed to the possible hazard of a denial of a hearing of its case on the merits.
“ Generally, a dismissal of an action without prejudice indicates there has been no decision of the ease on the merits, and, conversely, a dismissal with prejudice indicates an adjudication on the merits of the case ” (27 C. J. S., Dismissal and Nonsuit, § 73; 17 Am. Jur., Dismissal, Discontinuance and Nonsuit, § 106; 149 A. L. R. 625; Restatement, Judgments, § 53, Comment c; cf. Girardon v. Foa, 286 App. Div. 809). It is recognized that in cases involving procedural, jurisdictional or venuel matters, the general rule may not be applicable, but the case before us involves none of these questions. Putvin v. Buffalo Elec. Co. (5 N Y 2d 447) upon which the majority place great stress, held the words “ with prejudice ” in the posture of the case before them meant no more than that defendant third-party plaintiff could serve no ‘ ‘ further or amended third-party complaints in these actions as the plaintiffs’ complaints now stand” (p. 460). The words merely carried out the sense of the basic order which held the third-party complaints failed to state a cause of action. Thus the words “ with prejudice ” were superfluous. Obviously that is not the case before us.
In the Van Aalten case (Van Aalten v. Mack, 9 A D 2d 648) this court, in affirming the order granting plaintiff’s motion to discontinue, referred to the fact that proceedings in the action had not developed intensively. In that case plaintiff moved to discontinue and consented to the condition imposed. In the case before us plaintiffs did not seek a dismissal or a discontinuance, *430they merely refused to go forward when the case was called for trial. Plaintiffs’ failure to proceed should have resulted in a nonsuit or a dismissal without prejudice (Weisinger v. Berfond, 11 A D 2d 817, affd. 9 N Y 2d 742; Mink v. Keim, 291 N. Y. 300; Greenberg v. De Hart, 4 NY 2d 511; Honsinger v. Union Carriage & Gear Co., 175 N. Y. 229; Mintzer v. Loeb, Rhoades & Co., 10 A D 2d 27; Schultz v. Kobus, 15 AD 2d 382).
The words 6 ‘ with prejudice ’ ’ without the addition of words of limitation or explanation, may well be construed in their general sense, rather than be controlled or governed by the expressed intention of the majority, because of the nature and character of the order and judgment appealed from. We see no reason to place these plaintiffs in that possibly perilous situation when the matter could so simply and easily be placed in proper perspective by a modification of the order before us.
It is hardly an excessive resort to the processes of the court to do that which one has a right to do. A party has the right to select the forum in which he prefers to try his case (Paramount Pictures v. Blumenthal, 256 App. Div. 756, 758; cf. Admiral Corp. v. Reines Distrs., 9 A D 2d 410, affd. 8 N Y 2d 773). And by the general rule he may discontinue at any time without prejudice unless the defendants have a counterclaim or would be prejudiced thereby or substantial rights of his adversary would be injured or impaired (cf. Schintzuis v. Lackawanna Steel Co., 224 N. Y. 226; Rules Civ. Prac., rule 301; Honsinger v. Union Carriage Gear Co., 175 N. Y. 229). The fear that plaintiffs might continue to burden the facilities of the court seems groundless. I entertain no doubt that plaintiffs would even stipulate as a condition to discontinue that no other action be brought by them in State courts on this same issue — a condition which the court might have imposed originally. However, defendants did not seek dismissal because of harassment, but because of prior court decisions in this case. Certainly the Appellate Division’s decision did not mandate a dismissal with prejudice, because of a default at trial.
For the reasons stated I dissent and would modify the order appealed from to strike the words “ with prejudice ” from the first ordering paragraph and to strike the second and third ordering paragraphs in their entirety, with costs to appellants.
Eager, Steuer and Berg-ax, JJ., concur in Per Curiam opinion; Stevexs, J., dissents in opinion in which Breitel, J. P., concurs.
Order, entered on April 18, 1962, affirmed, with $20 costs and disbursements to the respondents.