
    Frank M. Dunbaugh, Respondent, v. James E. Hams, as Executor, etc., of John J. Hams, Deceased, Appellant, and Matthew M. Marshall, Respondent.
   Judgment modified by adding at the end thereof after the words “ be dismissed,” the words “ but not upon the merits,” and as so modified affirmed, with costs to the respondents. No opinion. Present — Dowling, P. J., Merrell, Finch, McAvoy and Proskauer, JJ.  