Opinion
April, 1926.
Present — Kelly, P.J., Rich, Manning, Young and Lazansky, JJ.
Judgment dismissing complaint upon the merits modified by striking out the words "upon the merits" and substituting therefor the words "without prejudice." As the dismissal was because of failure of proof, findings of fact were unnecessary, and the findings of fact are vacated; and the conclusion of law is modified by providing that the dismissal is without prejudice. As so modified, the judgment is unanimously affirmed, without costs.