The dismissal on the merits of an action in equity is no bar to an action at law. The cause of action at law is necessarily a different one. But in such new action the parties are entitled to the benefit of the findings of fact made in the equity action. If the modifying clause was intended merely to assure the plaintiff its right to sue at law, it was unnecessary. If it was intended beyond this to deprive the defendant of the benefit of the findings of fact which had been made in his favor, it was improper.
The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Present — Dowling, P. J., Merrell, Finch, McAvoy and Proskauer, JJ.; Merrell, J„, dissents.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.