
    James A. Andrews, Appellant, v. Samuel Lebis et al., Defendants, and 98 Montague, Inc., et al., Respondents.
   On a prior appeal this court reversed an order insofar as it denied respondents’ motion to dismiss for insufficiency the only causes of action contained in a complaint against them, and granted the motion. (279 App. Div. 1013.) On respondents’ application, Special Term, by order, dated August 1, 1952, granted a severance of the action against respondents, directed judgment dismissing the complaint on the merits as against them, and granted their motion to retax costs. Plaintiff appeals from this order, as well as from an order, dated September 23, 1952, denying his motion to vacate the order of August 1, 1952, and from the judgment entered thereon on October 6, 1952. Order, dated August 1, 1952, modified on the law by striking from the second ordering paragraph the words “on the merits”. Order, dated September 23, 1952, modified on the law, by striking out the word “ denied ” and substituting therefor the words “ granted to the extent of striking from the second ordering paragraph of the order of August 1, 1952, the words ‘on the merits’ and otherwise denied”. Judgment, entered October 6, 1952, modified on the law by striking from the second decretal paragraph the words “ on the merits ”. As so modified, the orders and judgment are unanimously affirmed, with one bill of $10 costs and disbursements to appellant. The dismissal of the causes of action against respondents on the prior appeal was for defects in pleading, it was not a final adjudication of any question of fact or law, and it was not on the merits, even though plaintiff was not granted leave to plead over. (Joannes Bros. Co. v. Lamborn, 237 R. Y. 207; Brick v. Cohn-H all-Marx Co., 283 R. Y. 99; Richard v. American Union Bank, 253 R. Y. 166; 2 Freeman on Judgments [5th ed.], §§ 745, 746, 747; Restatement, Judgments, § 50.) Present — Rolan, P. J., Carswell, Adel, MacCrate and Beldoek, JJ.  