#### John S. Jones, Appellant, Respondent, *v.*George J. Gould and William E. Guy, Appellants, Respondents, Impleaded with Joseph Ramsey, Jr., Defendant.

(No. 1.)

First Department,

June 2, 1911.

Judgment — modification—power of court — dismissal upon merits — order of judge presiding at trial.

The Supreme Court always has jurisdiction to correct its own judgments if a proper case for such, action be made out.

A judgment of dismissal should only be'entered where it is intended to nonsuit the plaintiff and not where it is intended to render a final judgment against him.

Where a complaint is dismissed because of failure of proof the dismissal is not upon the merits.

Where the court on the trial of an action dismissed the complaint at the close of plaintiff’s case as to certain of the defendants, but did not direct a verdict in their favor and did not make any findings to sustain a judgment for them on the merits, a statement in the judgment that the dismissal was “ upon the merits ” will be stricken out on motion.

A judgment upon the merits must rest upon findings of fact expressed either by the verdict of a jury or by findings of the court.

The fact that the dismissal was stated to be “ upon the merits,” and that the judgment was entered in that form by direction of the court, is not conclusive.

Even where a judgment has been entered upon a directed verdict it is not a bar unless it had to be directed upon the merits.

Although the judgment in question is in form “upon the merits” the presumption is that it was not so rendered because it is unsupported by verdict or finding of fact and it is manifest that the complaint might have been dismissed upon grounds not involving the merits.

*272An order made by the justice ¶1⁄8 presided at a trial more than a month alter it had been concluded,-which directed judgment to he entered dismissing the complaint “ upon the merits,” is a nullity and adds no force to the judgment.

The only warrant for entering judgment in an action tried before a jury is. the clerk’s minutes.

ükoss-appeals by the plaintiff, John S'. Jones, and the defendants, George J. Gould and another, from an order of the Supreme Court, made at the New. York Special Term and entered in. the office, of. the clerk of the county of New York on the 24th day of March, 1911.

*Edgar T.*Brackett, for the plaintiff:

*Bush Taggart,*for the defendants.

Scott, J.:

This is an appeal by both parties from an order made upon plaintiff’s motion for an order correcting the judgment which was entered herein on December 17, 1907, by striking out the words “ on the merits ” wherever they occur.

The facts appear to be as follows: This is one of two actions commenced by plaintiff against defendants appellant and Joseph Ramsey, Jr., upon the same facts and for the same relief, but, as it is said, upon different theories as to plaintiff’s right to recover. This action is No. 1. It was begun in June,- 1905, action No. 2 having been begun in January, 1906. This action came on for trial before the court and a' jury in 1907, and at the close of the plaintiff’s case it was dismissed as to the appellants Gould and Guy,' and proceeded to a verdict as to the defendant Ramsey. The judgment which was entered dismissed the complaint as against Gould and Guy “upon the merits.’’ The plaintiff, although he appealed from this judgment in so far as it dismissed the complaint against Gould and Guy, did not prosecute his appeal, and it was dismissed. The Appellate Division reversed the judgment as' against Ramsey and ordered a new trial. ' *(Jones*v. *Ramsey, No. 1,*127 App. Div. 704.) Action No- 2 had previously come on for trial before the court and a jury and resulted in a verdict against all the defendants, upon which a judgment was entered. From this judgment an appeal was taken to the Appel*273late Division, which, reversed it with an opinion indicating that the complaint did not state, a cause of action. *(Jones*v. *Gould, No. 2,*123 App. Div. 236.) Defendants then moved upon the pleadings at Special Term to dismiss the complaint. This motion was denied, hut the order was reversed at the Appellate Division and judgment entered for the defendants. *(Jones*v. *Gould,*130 App. Div. 151.) This judgment was reversed by the Court *of*Appeals (200 N. Y. 18), upon gTounds which necessitate a new trial upon the merits. The plaintiff now expresses himself as apprehensive that the defendants Gould and t Guy may attempt to interpose in action No. 2 the defense of *res adjudícala*by pleading the dismissal of the complaint *on the merits*in action No. 1. To avoid this possibility he now seeks to strike out from the judgment hi action No. 1 the words “on the merits,” so that the judgment will show, as he asserts was. the fact, that the dismissal as to Gould and Guy was only a nonsuit. The record befoi'e izs is a little confused. It appears that the attorneys for Gould and Guy at first, for what reason we do not understand, refused to appear upon the motion except “specially” for the purpose of objecting that the court had no jurisdiction to entertain the motion. Of course, thei’e was no force in this objection, for the court always has jurisdiction over its own judgments to correct them if a proper case is made out for such'action. *(Ellis*v. *Hearn,*132 App. Div. 207.) The only question upon such a motion as the present is whether or not the desired correction should be made, and this is not a question of jurisdiction. The court at Special Term was, therefore, right in holding that it had jurisdiction to hear the motion,' and the defendants’ appeal is, therefore, not well taken.

After the time limited by the rules for the service of answering affidavits had expired, the defendants sought to appear generally in opposition to the motion, but the plaintiff refused to receive their affidavits and objected to their being allowed to appear and be heard upon the merits. The court declined to grant such an important motion upon default, when the defendants were striving to be heard upon it, and denied plaintiff’s motion, with leave tó. í’enew.' The plaintiff, instead of availing. *274himself of the leave to renew the motion, now appeals' to this conrt from the order, in so far as it denies his motion, and-prints as a part of the appeal papers the affidavits and exhibits which defendants sought to read in opposition to the motion. From this circumstance we assume that plaintiff intends to submit the appeal on all the papers, waiving any objection he may have heretofore raised to the right of the defendants to appear and oppose the motion on the merits. This assumption is strengthened by the fact that we find among the appeal papers, after a statement of the objections which plaintiff interposed to defendants’ general appearance, the following note: “ Stipulation adjourning hearing until March 21st, 1911, and waiving the above objection No. 1.” As the objection thus-apparently waived was the only one worthy of any consideration, we conclude that there is no obstacle in the way of a determination on the merits. •

There has been no little uncertainty and confusion concerning the proper practice as to the dismissal of a complaint. Properly speaking, a judgment of dismissal should be entered only when it is intended to nonsuit the plaintiff, but it has frequently happened that judgments have been entered in the form of a dismissal on the merits, when, what was really intended was the rendition of a final judgment against the plaintiff. “Where a complaint is dismissed because of failure of proof, the dismissal is not upon the merits, because the merits are not involved, the complaint being dismissed because of want of merit in the proof. It is only where a *prima facie*'case is made Out, and proof offered to rebut it, that the merits are involved.”. *(Martin*v. *Cook,*14 N. Y. Supp. 329, 331; *Koewing*v. *Thalmann,*139 App. Div. 893; *Molloy*v. *Whitehall Portland Cement Co.,*116 id. 839, 843.) If the direction for judgment was made because the plaintiff, had failed in his proof, it must, therefore, be construed as a dismissal of the complaint, and the words “on thq merits” had no proper place in the *postea.*And we are compelled to conclude that what the court intended was to dismiss • the complaint, because there was neither the direction of a verdict nor a finding by the court to sustain a judgment on the merits. “If there is no evidence to sustain an *275opposite verdict, a trial court is justified in directing one, not because it would have authority to set aside an opposite one, but because there was an actual defect of proof, and, hence, as a matter of law, the party was not entitled to recover.” *(McDonald*v. *Metropolitan Street R. Co.,*167 N. Y. 66, 70.) It is fundamental that a judgment upon the merits must rest upon findings of fact expressed in some form either by the verdict of a jury or by the findings of the court, otherwise the judgment has nothing to support it. The fact that the dismissal was stated to be *“*on the merits,” and the judgment entered in that form apparently by direction of the court does not establish that judgment as a conclusive one. Even where a judgment has been entered upon a directed verdict it is not a bar if the verdict *might*have been directed upon the merits, but only if it *must*have been so directed. *“*The judgment roll is the primary but not the exclusive guide to determine the question and when it appears therefrom that the judgment might have been rendered on the merits, or upon a ground not involving the merits, the presumption is that it was not upon the merits and the burden is upon the one who claims it is a bar to show by extrinsicevidence consistent with the judgment roll that it was in fact rendered on the merits.” *(Clark*v. *Scovill,*198 N. Y. 279.) The case just cited is decisive of the question we have to consider. Although the judgment is in form “on the merits,” the presumption is that it was not because it is unsupported by verdict or finding of fact, and it is manifest that the complaint *might*have been dismissed upon a ground not involving the merits. Indeed the proceedings upon the trial, quoted from the case on appeal from the judgment, show very plainly that what happened amounted only to a nonsuit. The order made by the justice who presided at the trial, more than a month after the trial had been concluded, which directed judgment to be entered dismissing the complaint upon the merits, was a nullity and added no force to the judgment. It may, therefore, be disregarded. The warrant for entering judgment in an action tried before a jury is the clerk’s minutes, and not an order made weeks after the term had ended. There is no difficulty about the power of the court to make the desired and proper correction in the judg*276ment. *Clark*v. *Scovill (supra)*arose upon a similai motion respecting a judgment entered several years before upon a directed verdict, and the Court of Appeals held decisively that the court possessed inherent power to grant the motion.. It fól-lows that the order in so far as appealed from by defendants is affirmed, and. in so far as appealed from by plaintiff is reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.

Order in so far as appealed from by defendants affirmed, and in so far as appealed from by plaintiff reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Order to be settled on.notice.