
    Charles E. Ellis, Appellant, v. Elizabeth B. Phinney and Another, Respondents.
   Judgment modified by striking out the words “ on the merits,” and substituting in place thereof the words “ wdthout prejudice,” and as so modified affirmed, with costs to the respondents. Hill, P. J., Rhodes and Heffernan, JJ., concur; Crapser and Bliss, JJ., vote to reverse and for a new trial.  