Appeal from a judgment entered on the 24th.day of January, 1910, dismissing the complaint at the close of the whole case, after a trial at Trial Term.

The complaint having been dismissed at the close of the testimony, the action of the court was in the nature of a nonsuit and, therefore, not upon the merits. The judgment must, therefore, be modified by striking out the words “on the merits," and as so modified affirmed, with costs to the respondents. *894Present — Ingraham, P. J., McLaughlin, Clarke, Scott and Miller, JJ. Judgment modified by striking out the-words “on the merits,’’, and as modified affirmed,' with costs to respondents.