Steele v. Wells

Per Curiam.

The case of Brooks v. Dick, (Sup.) 17 N. Y. Supp. 259, was controlling upon the justice at special term, but, as the dismissal was upon the opening of the plaintiffs’ counsel, it was erroneous to dismiss the complaint upon the merits. The judgment should be modified so as to direct a simple dismissal of the complaint, and, as thus modified, it is affirmed, without costs on this appeal.