"Motion granted and appeal dismissed, with costs and ten dollars costs of motion, under the provisions of subdivision 4 of section 190 of the Code of Civil Procedure. The case of McNamara v. Goldan (194 N. Y. 315) is distinguished in that the final judgment in this case was not entered solely in pursuance of the mandate of the Appellate Division, but in part upon an examination of the merits of the case by the Special Term.