Vallone v. Todaro

— Judgment unanimously reversed insofar as the complaint was dismissed “upon the merits” and judgment of dismissal otherwise affirmed, without costs of this appeal to any party. Memorandum: We do not approve the conduct of plaintiff’s attorney, but, so far as the record shows, the Trial Judge gave no direction to dismiss the complaint upon the merits and it was, therefore, improper to enter a judgment dismissing it upon the merits, under section 482 of the Civil Practice Act. (Appeal from judgment of Erie County Court dismissing plaintiffs’ complaint as to both defendants, upon plaintiffs refusing to proceed after opening statement by counsel for defendant Kroll, in an automobile negligence action,) Present — Williams, P. J., Bastow, Goldman, Halpern and MeClusky, JJ.