
    Herrmann Herskowitz, Appellant, v. Anna I. Feldman and Irving J. Feldman, Respondents.
   Judgment dismissing complaint upon the merits modified by-striking out the words “ upon the merits ” and substituting therefor the words “ without prejudice.” As the dismissal was because of failure of proof, findings of fact were unnecessary, and the findings of fact are vacated; and the conclusion of law is modified by providing that the dismissal is without prejudice. As so modified, the judgment is unanimously affirmed, without costs. Present ■—■ Kelly, P. J., Rich, Manning, Young and Lazansky, JJ.  