Order, entered on June 29, 1962, granting defendant's motion to dismiss the complaint, under rule 107 of the Rules of Civil Practice, on the ground that there is a prior judgment determinative of the issues, unanimously reversed, on the law, without costs to any party, the motion denied, and the judgment entered thereon vacated. The statute is explicit (Civ. Prac. Act, § 482). Unless the prior judgment dismissing the complaint before the close of plaintiff's evidence was expressly declared to be on the merits, it does not bar a subsequent action for the same cause. In this case, the prior judgment did not so declare, and, of course, it was rendered prior to any trial or hearing on the merits. A compulsory nonsuit is not to be confused with a judgment which either determines the merits or, although not determining the merits, determines an issue of fact or of law in abatement or personal to a litigant (cf. Restatement, Judgments, §§ 49, and 50 with § 53, together with respective Comments; see, also, e.g., Linton v. Perry Knitting Co., 295 N.Y. 14, 17).
Concur — Botein, P.J., Breitel, Valente, Stevens and Steuer, JJ. [ 35 Misc.2d 704.]