
    Adolf Schwarcz, Appellant, v. North German Lloyd, Respondent.
    Supreme Court, Appellate Term, First Department,
    November 6, 1958.
    
      Cornelius F. Qustav and Isidore R. Tucker for appellant.
    
      Arnold W. Knauth for respondent.
   Per Curiam.

Since the determination was not on the merits the dismissal of the complaint should have been without prejudice.

The judgment and order should be modified to direct that the dismissal is without prejudice and as modified affirmed, with $25 costs to respondent.

Concur — Hofstadter, J. P., Aurelio and Tilzer, JJ.

Judgment modified, etc.  