
    James C. Heaney, Respondent, v. James Purdy et al., Appellants.
   Order unanimously modified in accordance with the memorandum and as so modified affirmed, without costs. Memorandum: Defendants established by documentary evidence that plaintiff's third cause of action for malicious prosecution may not be maintained because the merits of the charge against plaintiff have not been passed upon and plaintiff has not been acquitted thereof. The order appealed from should, therefore, be modified by substituting for the words “ denied in all respects ” the words granted to the extent of dismissing the third cause of action and in all other respects denied.” No motion having been made under CPLR 3211 (subd. [a], par. 7) to dismiss for failure to state a cause of action, we do not pass upon that question. (Appeal from order of Erie Special Term denying motion to dismiss complaint.) Present—Bastow, P. J., Goldman, Marsh, Witmer and Henry, JJ.  