Judgment modified so as to provide that the dismissal of defendant’s second *653counterclaim is without prejudice, and as so modified unanimously affirmed, with costs to respondent. Finding of fact 33 at folio 332 and conclusion of law 9 are reversed. The record fails to show that the contract dated October 21, 1925, was modified as alleged by plaintiff in his reply, and finding of fact 33 at folio 332 is not supported by the evidence. Present — Lazansky, P. J., Rich, Young, Kapper and Seudder, JJ.