Marcus v. Joline

Plaintiff brought an action, based upon the alleged negligence of the defendant. At the close of the plaintiff’s case, the defendant offered no evidence, but made this motion: “I make the usual motion, if the court pleases.” Thereupon the court said: “Judgment for the defendant. The complaint is dismissed upon the *173merits.” Upon this appeal, both sides concede that a dismissal upon the merits was error.

Judgment modified, by inserting a direction that the complaint be dismissed without prejudice to a new action, and, as modified, affirmed, with $10 costs to the appellant.