
    First Department,
    January, 1923.
    Wagner Trading Company, Appellant, v. Vincenzo Radillo, Respondent.
    
      Judgment — when improper to enter upon the merits — modification.
    
    Appeal from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 25th day of November, 1921, upon a dismissal of the complaint upon the merits by direction of the court at the close of the plaintiff’s case.
   Per Curiam:

The complaint was dismissed at the close of plaintiff’s case for failure of proof, and, therefore, it was improper to enter a judgment dismissing the complaint upon the merits. The judgment should be modified by striking out the words “ upon the merits,” and as so modified affirmed, without costs. Present — Clarke, P. J., Dowling, Page, Merrell and Finch, JJ. Judgment modified by striking out the words “ upon the merits,” and as so modified affirmed, without costs.  