
    LEVI PULVER v. GEORGE YOUNGHANSE.
    Complaint—Erroneous to dismiss, on the merits, where the issues
    HAVE NOT BEEN LITIGATED.
   Cullen, J.

We think the referee clearly right in the determination of the issues litigated before him, and we see no error in his ruling as to the- admission of evidence. As to the second cause of action, while there appears no explicit withdrawal of it upon the trial, still no evidence relating to it was offered. While the complaint was properly dismissed as to this cause of action, on -account of the failure of proof, the issue not having been litigated, it was erroneous to dismiss it on the merits.

The judgment should be modified so as to dismiss the complaint on the merits" as to the first cause of action, and as modified should be affirmed, with costs.  