Opinion
October, 1932.
Present — Lazansky, P.J., Kapper, Scudder, Tompkins and Davis, JJ. The decision of this court handed down on July 13, 1932 [ ante, p. 747], is hereby amended by striking therefrom the statement that the trial court had no power to dismiss the complaint on the merits, and by inserting in place thereof the statement that under the circumstances of the case this court is of opinion that the trial court should not have dismissed the complaint on the merits. Lazansky, P.J., Young, Kapper and Tompkins, JJ., concur; Carswell, J., dissents on authority of Cabang v. United States Shipping Board Merchant Fleet Corporation ( 227 App. Div. 751).
Motion for leave to appeal to the Court of Appeals denied.