
    Emeline Roach, Respondent, v. Otto Lorence and Jacob Lazarowitz, Appellants, Impleaded with Mary Lorence and Others, Defendants.
    First Department,
    December 4, 1914.
    Judgment — dismissal of counterclaims “on the merits.”
    Where, upon the trial of an action, the defendants consent to a nonsuit as to certain counterclaims, and introduce no evidence, a judgment dismissing them “on the merits” is unwarranted, and should be modified.
    Appeal by the defendants, Otto Lorence and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of February, 1913, upon the decision of the court after a trial at the New York Special Term.
    .Isaac N. Miller, for the appellants.
    
      Joseph Larocque, for the respondent.
   Dowling, J.:

The judgment appealed from is supported by the evidence and is correct in form, except as to the provisions thereof disposing of the three counterclaims interposed by the defendants. It appears that upon the trial the defendants consented to a nonsuit as to the first and second counterclaims and introduced no evidence thereupon, whereupon the court dismissed the same. So much of the decision and judgment, therefore, as adjudges the dismissal of these counterclaims upon the merits is unwarranted. As to the third counterclaim the defendants introduced proof and the court dismissed the same at the conclusion of the defendants’ case thereupon. The decision must, therefore, be modified by substituting in place of the third conclusion of law the following: “That the plaintiff is entitled to judgment against the defendants, Otto Lorence and Jacob Lazarowitz, dismissing the first and second counterclaims set forth and alleged in the answer of said defendants, and further dismissing the third counterclaim set forth in said answer upon the merits.” The fourth conclusion of law in the decision should be modified by changing the second paragraph thereof to read as follows: “I therefore direct the entry of judgment in favor of plaintiff and against the defendants, Otto Lorence and Jacob Lazarowitz, dismissing the first and second counterclaims set forth and alleged in the answer of the said defendants, and further dismissing the third separate counterclaim set forth in said answer on the merits, with one bill of costs to all counterclaims awarded to the plaintiff against the defendants Otto Lorence and Jacob Lazarowitz.” The judgment should be modified by changing the first paragraph of the directory clause thereof as follows: “Ordered, adjudged and decreed that the first and second separate counterclaims set forth and alleged in the answer of the defendants Otto Lorence and Jacob Lazarowitz be, and the same are, hereby dismissed, and further that the third separate counterclaim set forth in said answer be dismissed on the merits, and one bill of costs as to all counterclaims is hereby awarded to the plaintiff against the defendants Otto Lorence and Jacob Lazarowitz to be taxed.” As thus modified the judgment appealed from will be affirmed, with costs to the respondent.

Ingeaham, P. J., Clabke, Scott and Hotchkiss, JJ., ' concurred.

Judgment modified as directed in opinion, and as modified affirmed, with costs to respondent. Order to be settled on notice.  