Later Mr. and Mrs. Mink and Lefkowitz and Altschuler moved to have the words "on the merits" stricken from that judgment. That effort did not succeed (see Keim v. Orel, 263 App. Div. 779) so that there still stands of record and of full force against them a judgment of dismissal intended to be and stated to be on the merits. Despite the continuing vitality of that judgment the four plaintiffs above named now insist on their right to bring a new action, this time in New York County, against the same defendants on the same theory and for the same relief demanded in their prior actions. On motion of defendants Keim, the Appellate Division has ordered this new action dismissed, holding (as did both lower courts on the previous motion in the consolidation cause to excise the words "on the merits" from the judgment) that under all the circumstances, the judgment in the consolidated action was, in effect as in terms, a judgment on the merits.

Section 494-a of the Civil Practice Act has no application here. A mere reading of this section demonstrates that a judgment may be entered as therein provided only upon a "complaint or counterclaim" (4 Carmody on New York Practice, § 1197, p. 2713, n. 76). Defendant concedes that the only attempts to construe the statute as authorizing a judgment on the merits, in the absence of plaintiff and upon the evidence of a noncounterclaiming defendant, were unsuccessful (see Mink v. Keim, 266 App. Div. 184, 187-188, which we reversed in 291 N.Y. 300, supra, and Keim v. Orel, 263 App. Div. 779, 781 — affirming the denial of plaintiffs-passengers' motion to strike the words "upon the merits" from the judgment against them — which we necessarily overruled by our decision in Mink v. Keim). Defendant's claim that he had gained substantial rights in the prior action is which merit.