(164 App. Div. 733)

#### ROACH v. LORENCE et al.

(No. 6472.)

(Supreme Court, Appellate Division, First Department.

December 4, 1914.)

Judgment (§ 197*)—Nonsuit by Consent—Dismissal on Mebits.

Where defendant pleaded three counterclaims, but at the trial consented to a nonsuit as to two of them, and introduced no evidence thereon, a judgment dismissing those counterclaims on the merits is unwarranted, and will be modified, so as to show a simple dismissal.

[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 357, 359; Dec. Dig. § 197.*]

Appeal from Special Term, New York County.

Action by Emeline Roach against Otto Lorence and another. Judgment for plaintiff, and defendants .appeal. Modified and affirmed.

Argued before INGRAHAM, P. J., and CLARKE, SCOTT, DOWLING, and HOTCHKISS, JJ.

Isaac N. Miller, of New York City, for appellant.

Joseph Larocque, of New York City, for respondent.

*

For other cases see same topic & § number in Dec. *&*Am. Digs. 1907 to date, & Rep’r Indexes

DOWLING, J.

The judgment appealed from is supported by the evidence and is correct in form, except as to the provisions thereof disposing of the three counterclaims interposed by the defendants. It appears that upon the.trial the defendants consented to a nonsuit as to the second and third counterclaims and introduced no evidence thereupon, whereupon the court dismissed the same. So much of the decision and judgment, therefore, as adjudges the dismissal of these counterclaims upon the merits is unwarranted.

As to the third counterclaim, the defendants introduced proof and the court dismissed the same at the conclusion of the defendant’s case thereupon. The decision must therefore be modified by substituting in place of the third conclusion of law the following:

> “That tile plaintiff is entitled to judgment against the defendants, Otto Lorence and Jacob Lazarowitz, dismissing the first and second counterclaims set forth and alleged in the answer of said defendants, and further dismissing the third counterclaim set forth in said answer upon the merits.”

The fourth conclusion of law in the decision should be modified by changing the second paragraph thereof to read as follows:

> “I therefore direct the entry of judgment in favor of plaintiff and against the defendants, Otto Lorence and Jacob Lazarowitz, dismissing the first and second counterclaims set forth and alleged in the answer of the said defendants, and further dismissing the third separate counterclaim set forth in said answer on the merits, with one jfill of costs to all counterclaims awarded to the plaintiff against the defendants, Otto Lorence and Jacob Lazarowitz.”

The judgment should be modified by changing the first paragraph of the directory clause thereof as follows:

> “Ordered, adjudged, and decreed that the first and second separate counterclaims set forth and alleged in the answer of the defendants, Otto Lorence and Jacob Lazarowitz, be, and the same are, hereby dismissed, and further that the third separate counterclaim set forth in said answer be dismissed on the merits, and one bill of costs as to all counterclaims is hereby awarded *152to the plaintiff against the defendants, Otto Lorence and Jacob Lazarowitz, to be taxed.”

As thus modified, the judgment appealed from will be affirmed, with costs to the respondent. All concur.