
    Albert Reitman, Appellant, v. Morris Neulander, Respondent.
    Appeal from a judgment of the Municipal Court of the city of New York, fourth district, borough of Manhattan.
    Jacob Rieger, for appellant.
    Henry L. Franklin, for respondent.
   Per Ouriam.

The plaintiff offered no evidence of a demand upon the maker; the only paper offered in evidence according to the return was the note. The evidence upon a former trial and the exhibits used at that trial are in the return, but to no purpose. The evidence did not warrant a judgment upon the merits; there was simply a failure of proof. The judgment is, therefore, modified so that the action is dismissed without prejudice to a new action, and as modified, is affirmed, without costs.

Present: Truax, P. J., Scott and Dugro, JJ.

Judgment modified, and as modified, affirmed, without costs.  