
    Bernard Zaczek, Respondent, v. Jean Zaczek, Also Known as Jean Jung, Appellant.
   In an action to declare invalid an Alabama divorce decree obtained by the defendant, Jean Zaezek against plaintiff, and for other relief, in which the said defendant interposed a counterclaim for partition of certain real property owned by them as tenants by the entirety, and in which said defendant thereafter asserted her constitutional privilege against alleged self incrimination in refusing to answer certain questions propounded to her in the course of her pretrial examination by the plaintiff, the said defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County, dated April 27, 1962, conditionally dismissing her counterclaim because of such refusal, as directed that such dismissal is “ on the merits.” Order, insofar as appealed from, reversed, without costs; and the words “on the merits” are directed to be deleted from the order. As the learned Special Term neither determined nor considered the merits of the counterclaim, we are of the opinion that it should not have been dismissed on the merits (cf. Clark v. Scovill, 198 N. Y. 279; Weisinger v. Berfond, 11 A D 2d 817, affd. 9 N Y 2d 742). [For related appeal, see Zaczek v. Zaczek, 20 A D 2d 902; for prior appeal, see Zaczek v. Zaczek, 14 A D 2d 808.] Kleinfeld, Acting P. J., Christ, Brennan, Hill and Eabin, JJ., concur.  