majority">By the Court.*—Ingraham, J.

The judgment of dismissal in the Common Pleas may not be a conclusive bar to another action for the same cause. If it was dismissed for want of evidence to’ sustain the plaintiff’s case, or for any other cause than on the merits, it formed no bar, and the plaintiff had a right to bring a new action. But if the merits were inquired into on that trial, then the defendants had a right to set up that record as a bar to this action. This is particularly so where the action is one that formerly would have been brought in a court of equity. (4 Johns. Ch., 140; 7 Ib., 286; Burhans a. Van Zandt, 7 N. Y., 525.) The case showed that the plaintiff in the first action produced evidence in favor of the plaintiff’s claim, and the finding of the court is that such evidence was offered on that trial.

It is said that the Common Pleas modified the judgment in that court by adding to the judgment the words “ without prejudice to the right of the plaintiff to bring another action,” and the plaintiff contends that such addition prevents that j udgment from being a bar. I do not assent to that doctrine. If the judgment would have been a bar to the second action without those words, I am at a loss to see how the addition of those words changes the effect of the judgment. That case was tried by the court without a jury. The judge heard the plaintiff’s testimony, and decided on the merits. Having so decided, he cannot destroy the effect of that decision by giving the *420plaintiff leave to bring another action. Suppose the case had been before a jury, and they had found for the defendant, the court could not qualify the judgment by the addition to the judgment of*the words above referred to.

This view of the effect of the former judgment renders it unnecessary to examine the other questions in the cause.

The judgment should be affirmed.

Present, Sutherland, P. J., Ingraham and Leonard, JJ.

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